Right to Require Repurchase. (a) In the event that a Change in Control (as hereinafter defined) shall occur, then the holder of this Instrument shall have the right, at such holder's option, to require the Company to repurchase, and upon the exercise of such right the Company shall repurchase, all or part of this Instrument (as provided hereinbelow) on the date (the "Repurchase Date") that is 20 Business Days (or such longer period as required by applicable law) after the date on which the Company gives notice of such Change of Control to the holder of this Instrument, at a purchase price equal to the Repurchase Price (as hereinafter defined). The Company agrees to give the holder of this Instrument notice, in the manner provided in Section 8(c), of any Change in Control, promptly and in any event within three (3) Business Days after the occurrence thereof. (b) To exercise a repurchase right, the holder shall deliver to the Company on or before the 5th Business Day prior to the Repurchase Date, together with this Instrument, written notice of the holder's exercise of such right, which notice shall set forth the name of the holder, the principal amount of this Instrument to be repurchased (and, if this Instrument is to be repurchased in part, the portion of the principal amount thereof to be repurchased) and a statement that an election to exercise the repurchase right is being made thereby. Such written notice shall be irrevocable, except that the right of the holder to convert this Instrument (or the portion hereof with respect to which the repurchase right is being exercised) shall continue until the close of business on the Business Day prior to the Repurchase Date. (c) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the holder the Repurchase Price in cash on the Repurchase Date in the manner set forth in the introductory paragraph to this Instrument. (d) If this Instrument is to be repurchased only in part, it shall be surrendered to the Company at the Designated Office (with, if the Company so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company, duly executed by the holder hereof), and the Company shall execute and deliver to the holder, without service charge, a new Instrument containing terms and conditions identical to those contained herein and in a principal amount equal to and in exchange for the unrepurchased portion of the principal of this Instrument. (e) For purposes of this Section 7: (1) the term "beneficial owner" shall be determined in accordance with Rule 13d-3 promulgated by the Securities and Exchange Commission pursuant to the Exchange Act; (2) a "Change in Control" shall be deemed to have occurred at the time, after the original issuance of this Instrument, of: (i) the acquisition by any Person (including, for purposes of this Section 7, any group of two or more persons or entities acting together as contemplated by Section 14(d) of the Exchange Act) of beneficial ownership, directly or indirectly, through a purchase, merger or other acquisition transaction or series of transactions, of shares of capital stock of the Company or the Parent entitling such Person to exercise 50% or more of the total voting power of all shares of capital stock of the Company or the Parent entitled to vote generally in the elections of directors (any shares of voting stock of which such Person is the beneficial owner that are not then outstanding being deemed outstanding for purposes of calculating such percentage) other than any such acquisition by the Company or the Parent or any employee benefit plan of the Company or the Parent; or (ii) any consolidation or merger of the Company or the Parent with or into, any other Person, any merger of another Person with or into the Company or the Parent, or any conveyance, transfer, sale, lease or other disposition of all or substantially all of the assets of the Company or the Parent to another Person (other than (a) any such transaction pursuant to which holders of capital stock of the Company (or if applicable, of the Parent) immediately prior to such transaction have the entitlement to exercise, directly or indirectly, 50% or more of the total voting power of all shares of capital stock entitled to vote generally in the election of directors of the continuing or surviving Person immediately after such transaction and (b) any merger (x) which does not result in any reclassification, conversion, exchange or cancellation of outstanding Common Stock or (y) which is effected solely to change the jurisdiction of incorporation of the Company or the Parent and results in a reclassification, conversion or exchange of outstanding Common Stock into solely shares of common stock);
Appears in 5 contracts
Sources: Convertible Note Agreement (Tekelec), Convertible Note Agreement (Tekelec), Convertible Note Agreement (Catapult Communications Corp)
Right to Require Repurchase. Section 8.1. Repurchase of Securities at Option of the Holder upon Change of Control or Regulatory Redemption Event.
(a) In the event that a Change in of Control or a Regulatory Redemption Event (the date on which such event occurs being referred to as hereinafter definedthe "Event Date") occurs, the Company shall occurbe required to commence an offer to purchase Securities (each an "Event Offer"), then the holder and each Holder of this Instrument Securities shall have the right, at such holderHolder's option, subject to the terms and conditions hereof, to require the Company to repurchase, and upon the exercise repurchase all or any part (in integral multiples of $1.00) of such right the Company shall repurchaseHolder's Notes, all or part of this Instrument (as provided hereinbelow) on the date at a Cash price (the "Repurchase Event Offer Price") equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to the date of repurchase thereof (the "Event Payment Date") that is 20 Business Days (or such longer period as required by applicable law) after in accordance with the date on which the Company gives notice of such Change of Control to the holder of this Instrument, at a purchase price equal to the Repurchase Price (as hereinafter defined). The Company agrees to give the holder of this Instrument notice, in the manner provided in Section 8(c), of any Change in Control, promptly and in any event within three (3) Business Days after the occurrence thereoffollowing provision.
(b) To exercise a repurchase rightIn the event that, pursuant to this Section 8.1, the holder Company shall deliver be required to commence an Event Offer, the Company shall follow the procedures set forth in this Section 8.1 as follows: 104 116
(i) the Event Offer shall commence within 10 Business Days following the Event Date;
(ii) the Event Offer shall remain open for 20 Business Days and no longer, except to the extent that a longer period is required by applicable law (the "Event Offer Period");
(iii) within five Business Days following the expiration of an Event Offer (and in any event not later than 35 Business Days following the Event Date), the Company shall purchase all of the tendered Securities at the Event Offer Price together with accrued interest to the Event Payment Date;
(iv) if the Event Payment Date is on or after an interest payment record date and on or before the 5th Business Day prior related interest payment date, any accrued interest will be paid to the Repurchase Person in whose name a Security is registered at the close of business on such record date, and no additional interest will be payable to Holders who tender Securities pursuant to the Event Offer and who are paid on the Event Payment Date, together ;
(v) the Company shall provide the Trustee with this Instrument, written notice of the holder's exercise Event Offer at least five Business Days before the commencement of such rightany Event Offer; and
(vi) on or before the commencement of any Event Offer, the Company or the Trustee (upon the request and at the expense of the Company) shall send, by first-class mail, a notice to each of the Holders, which notice (to the extent consistent with this Indenture) shall set forth govern the name terms of the holder, Event Offer and shall state:
(1) that the principal amount of this Instrument to be repurchased (and, if this Instrument is to be repurchased in part, the portion of the principal amount thereof to be repurchased) and a statement that an election to exercise the repurchase right Event Offer is being made thereby. Such written notice shall pursuant to this Section 8.1;
(2) the Event Offer Price (including the amount of accrued and unpaid interest), the Event Payment Date and the Event Put Date (as defined below);
(3) that any Security or portion thereof not tendered or accepted for payment will continue to accrue interest;
(4) that, unless (a) the Company defaults in depositing Cash with the Paying Agent (which may not for purposes of this Section 8.1, notwithstanding anything in this Indenture to the contrary, be irrevocable, except that the right Company or any Affiliate of the holder Company) in accordance with the last paragraph of this clause (b) or (b) such Event Payment (an "Event Payment")is prevented for any reason, any Security or portion thereof accepted for payment pursuant to convert the Event Offer shall cease to accrue interest after the Event Payment Date;
(5) that Holders electing to have a Security, or portion thereof, purchased pursuant to an Event Offer will be required to surrender the Security, with the form entitled "Option of Holder to Elect Purchase" on the reverse of the Security completed, to the Paying Agent (which may not for purposes of this Instrument (Section 8.1, notwithstanding anything in this Indenture to the contrary, be the Company or any Affiliate of the portion hereof with respect Company) at the address specified in the notice prior to which the repurchase right is being exercised) shall continue until the close of business on the fifth Business Day prior to the Repurchase Event Payment Date (the "Event Put Date.");
(c6) In the event a repurchase right shall that Holders will be exercised entitled to withdraw their elections, in accordance with the terms hereof, the Company shall pay whole or cause to be paid to the holder the Repurchase Price in cash on the Repurchase Date in the manner set forth in the introductory paragraph to this Instrument.
(d) If this Instrument is to be repurchased only in part, it shall be surrendered to the Company at the Designated Office (with, if the Company so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company, duly executed by the holder hereof), and the Company shall execute and deliver to the holder, without service charge, a new Instrument containing terms and conditions identical to those contained herein and in a principal amount equal to and in exchange for the unrepurchased portion of the principal of this Instrument.
Paying Agent (e) For purposes of this Section 7:
(1) the term "beneficial owner" shall be determined in accordance with Rule 13d-3 promulgated by the Securities and Exchange Commission pursuant to the Exchange Act;
(2) a "Change in Control" shall be deemed to have occurred at the time, after the original issuance of this Instrument, of:
(i) the acquisition by any Person (includingwhich, for purposes of this Section 78.1, notwith- standing any group other provision of two or more persons or entities acting together as contemplated by Section 14(d) of the Exchange Act) of beneficial ownershipthis Indenture, directly or indirectly, through a purchase, merger or other acquisition transaction or series of transactions, of shares of capital stock of may not be the Company or the Parent entitling such Person to exercise 50% or more an Affiliate of the total voting power Company) receives, up to the close of business on the Event Put Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Securities the Holder is withdrawing and a statement that 106 118 such Hold▇▇ ▇▇ withdrawing his election to have such principal amount of Securities purchased; and
(7) a brief description of the events resulting in such Change of Control or Required Regulatory Redemption. No later than 12:00 noon, New York City Time, on an Event Payment Date, the Company shall (i) accept for payment Securities or portions thereof properly tendered pursuant to the Event Offer prior to the close of business on the Event Put Date, (ii) irrevocably deposit with the Paying Agent Cash sufficient to pay the Event Offer Price (including accrued and unpaid interest) of all shares Securities so tendered and (iii) deliver to the Trustee Securities so accepted together with an Officer's Certificate listing the Securities or portions thereof being purchased by the Company. The Paying Agent shall on the Event Payment Date pay to the Holders of capital stock Securities so accepted an amount equal to the Event Offer Price (including accrued and unpaid interest), and the Trustee shall promptly authenticate and mail or deliver to such Holders a new Security equal in principal amount to any unpurchased portion of the Company Security surrendered. Any Securities not so accepted shall be promptly mailed or the Parent entitled to vote generally in the elections of directors (any shares of voting stock of which such Person is the beneficial owner that are not then outstanding being deemed outstanding for purposes of calculating such percentage) other than any such acquisition delivered by the Company or to the Parent or any employee benefit plan of the Company or the Parent; or
(ii) any consolidation or merger of the Company or the Parent with or into, any other Person, any merger of another Person with or into the Company or the Parent, or any conveyance, transfer, sale, lease or other disposition of all or substantially all of the assets of the Company or the Parent to another Person (other than (a) any such transaction pursuant to which holders of capital stock of the Company (or if applicable, of the Parent) immediately prior to such transaction have the entitlement to exercise, directly or indirectly, 50% or more of the total voting power of all shares of capital stock entitled to vote generally in the election of directors of the continuing or surviving Person immediately after such transaction and (b) any merger (x) which does not result in any reclassification, conversion, exchange or cancellation of outstanding Common Stock or (y) which is effected solely to change the jurisdiction of incorporation of the Company or the Parent and results in a reclassification, conversion or exchange of outstanding Common Stock into solely shares of common stock);Holder thereof.
Appears in 2 contracts
Sources: Indenture (Jazz Casino Co LLC), Indenture (Jazz Casino Co LLC)
Right to Require Repurchase. (a) In the event that a Change in Control (as hereinafter defined) shall occur, then the holder Holder of this Instrument Note shall have the right, at such holder's Holder’s option, to require the Company to repurchase, and upon the exercise of such right the Company shall repurchase, all this Note, or part any portion of this Instrument (as provided hereinbelow) the principal amount hereof that is equal to $1,000 or any integral multiple thereof, on the date (the "“Repurchase Date"”) that is 20 Business Days (or such longer period as required by applicable law) after the date on which the Company gives notice of such Change of Control to the holder of this Instrumentoccurs, at a purchase price equal to the Repurchase Price (as hereinafter defined). The Company agrees to give the holder of this Instrument noticeHolder, in the manner provided in Section 8(c7(b), of any Change in Control, promptly and in any event within three ten (310) Business Trading Days after prior to the occurrence thereof.
(b) To exercise a repurchase right, the holder Holder shall deliver to the Company on or before the 5th Business Day 2nd day prior to the Repurchase Date, together with this InstrumentNote, written notice of the holder's Holder’s exercise of such right, which notice shall set forth the name of the holderHolder, the principal amount of this Instrument Note to be repurchased (and, if this Instrument Note is to be repurchased in part, the portion of the principal amount thereof to be repurchased) and a statement that an election to exercise the repurchase right is being made thereby. Such written notice shall be irrevocable, except that the right of the holder Holder to convert this Instrument Note (or the portion hereof with respect to which the repurchase right is being exercised) shall continue until the close of business on the Business Trading Day prior to the Repurchase Date.
(c) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the holder Holder the Repurchase Price in cash on the Repurchase Date in the manner set forth in the introductory paragraph to this InstrumentNote.
(d) If this Instrument Note is to be repurchased only in part, it shall be surrendered to the Company at the Designated Office (with, if the Company so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company, Company duly executed by by, the holder hereofHolder hereof or his attorney duly authorized in writing), and the Company shall execute and deliver make available for delivery to the holder, Holder without service charge, a new Instrument Note or Notes, containing identical terms and conditions identical to those contained herein and conditions, each in a an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of this Instrumentthe Note so surrendered.
(e) For purposes of this Section 73:
(1) the The term "“beneficial owner" ” shall be determined in accordance with Rule 13d-3 promulgated by the Securities and Exchange Commission pursuant to the Exchange Act;
(2) a "Change in Control" shall be deemed to have occurred at the time, after the original issuance of this Instrument, of:
(i) the acquisition by any Person (including, for purposes of this Section 7, any group of two or more persons or entities acting together as contemplated by Section 14(d) of the Exchange Act) of beneficial ownership, directly or indirectly, through a purchase, merger or other acquisition transaction or series of transactions, of shares of capital stock of the Company or the Parent entitling such Person to exercise 50% or more of the total voting power of all shares of capital stock of the Company or the Parent entitled to vote generally in the elections of directors (any shares of voting stock of which such Person is the beneficial owner that are not then outstanding being deemed outstanding for purposes of calculating such percentage) other than any such acquisition by the Company or the Parent or any employee benefit plan of the Company or the Parent; or
(ii) any consolidation or merger of the Company or the Parent with or into, any other Person, any merger of another Person with or into the Company or the Parent, or any conveyance, transfer, sale, lease or other disposition of all or substantially all of the assets of the Company or the Parent to another Person (other than (a) any such transaction pursuant to which holders of capital stock of the Company (or if applicable, of the Parent) immediately prior to such transaction have the entitlement to exercise, directly or indirectly, 50% or more of the total voting power of all shares of capital stock entitled to vote generally in the election of directors of the continuing or surviving Person immediately after such transaction and (b) any merger (x) which does not result in any reclassification, conversion, exchange or cancellation of outstanding Common Stock or (y) which is effected solely to change the jurisdiction of incorporation of the Company or the Parent and results in a reclassification, conversion or exchange of outstanding Common Stock into solely shares of common stock);.
Appears in 1 contract
Sources: Convertible Note Agreement (Zap)
Right to Require Repurchase. (a) In the event that a Change in Control (as hereinafter defined) shall occur, then the holder of this Instrument Security shall have the right, at such holder's option, to require the Company to repurchase, and upon the exercise of such right the Company shall repurchase, all this Security, or part any portion of this Instrument (as provided hereinbelow) the principal amount hereof that is equal to $1,000 or any integral multiple thereof, on the date (the "Repurchase Date") that is 20 Business 30 Trading Days (or such longer period as required by applicable law) after the date on which the Company gives notice of such Change of Control to the holder of this InstrumentSecurity, at a purchase price equal to the Repurchase Price (as hereinafter defined). The Company agrees to give the holder of this Instrument Security notice, in the manner provided in Section 8(c9(b), of any Change in Control, promptly and in any event within three five (35) Business Trading Days after of the occurrence thereof.
(b) To exercise a repurchase right, the holder shall deliver to the Company on or before the 5th Business Day day prior to the Repurchase Date, together with this InstrumentSecurity, written notice of the holder's exercise of such right, which notice shall set forth the name of the holder, the principal amount of this Instrument Security to be repurchased (and, if this Instrument Security is to be repurchased in part, the portion of the principal amount thereof to be repurchased) and a statement that an election to exercise the repurchase right is being made thereby. Such written notice shall be irrevocable, except that the right of the holder to convert this Instrument Security (or the portion hereof with respect to which the repurchase right is being exercised) shall continue until the close of business on the Business Trading Day prior to the Repurchase Date.
(c) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the holder the Repurchase Price in cash on the Repurchase Date in the manner set forth in the introductory paragraph to this InstrumentSecurity.
(d) If this Instrument Security is to be repurchased only in part, it shall be surrendered to the Company at the Designated Office (with, if the Company so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company, Company duly executed by by, the holder hereofhereof or his attorney duly authorized in writing), and the Company shall execute and deliver make available for delivery to the holder, holder without service charge, a new Instrument Security or Securities, containing identical terms and conditions identical to those contained herein and conditions, each in a an authorized denomination in aggregate principal amount equal to and in CUSIP No. 096434105 SCHEDULE ▇▇▇ Page 11 of 27 exchange for the unrepurchased portion of the principal of this Instrumentthe Security so surrendered.
(e) For purposes of this Section 73:
(1) the term "beneficial owner" shall be determined in accordance with Rule 13d-3 promulgated by the Securities and Exchange Commission pursuant to the Exchange Act;
(2) a "Change in Control" shall be deemed to have occurred at the time, after the original issuance of this InstrumentSecurity, of:
(i) the acquisition by any Person (including, for purposes of this Section 7, any group of two or more persons or entities acting together as contemplated by Section 14(d) of the Exchange Act) of beneficial ownership, directly or indirectly, through a purchase, merger or other acquisition transaction or series of transactions, of shares of capital stock of the Company or the Parent entitling such Person to exercise 50% or more of the total voting power of all shares of capital stock of the Company or the Parent entitled to vote generally in the elections of directors (any shares of voting stock of which such Person is the beneficial owner that are not then outstanding being deemed outstanding for purposes of calculating such percentage) other than any such acquisition by the Company or the Parent or any employee benefit plan of the Company or the ParentCompany; or
(ii) any consolidation or merger of the Company or the Parent with or into, any other Person, any merger of another Person with or into the Company or the ParentCompany, or any conveyance, transfer, sale, lease or other disposition of all or substantially all of the assets of the Company or the Parent to another Person (other than (a) any such transaction pursuant to which holders of capital stock of the Company (or if applicable, of the Parent) Common Stock immediately prior to such transaction have the entitlement to exercise, directly or indirectly, 50% or more of the total voting power of all shares of capital stock entitled to vote generally in the election of directors of the continuing or surviving Person immediately after such transaction and (b) any merger (x) which does not result in any reclassification, conversion, exchange or cancellation of outstanding Common Stock or (y) which is effected solely to change the jurisdiction of incorporation of the Company or the Parent and results in a reclassification, conversion or exchange of outstanding Common Stock into solely shares of common stock);; However, a Change in Control will not be deemed to have occurred if (i) the Closing Price per share of the Company's Common Stock for any five (5) Trading Days within the period of ten (10) consecutive Trading Days ending immediately after the later of the Change in Control or the public announcement of the Change in Control, in the case of a Change in Control relating to an acquisition of capital stock, or the period of ten (10) consecutive Trading Days ending immediately before the Change in Control, in the case of Change in Control relating to a merger, consolidation or asset sale, equals or exceeds 105% of the Conversion Price of this Security; or (ii) 95% of the consideration (excluding cash payments for fractional shares and cash payments made pursuant to dissenters' appraisal rights) in a merger or consolidation otherwise constituting the Change of Control described in clause (ii) above consists of shares of common stock traded or to be traded immediately following such Change of Control on a national securities exchange or quoted on the Nasdaq National Market and as a result of such transaction or transactions this Security becomes convertible solely into such common stock. CUSIP No. 096434105 SCHEDULE ▇▇▇ Page 12 of 27 (iii) the "current market price" of a share of Common Stock shall be the Closing Price of the Common Stock on the Trading Day immediately preceding the Repurchase Date; and
Appears in 1 contract
Sources: 5% Convertible Subordinated Note (Astoria Capital Partners L P)
Right to Require Repurchase. (a) In the event that a Change in Control (as hereinafter defined) shall occur, then the holder of this Instrument shall have the right, at such holder's option, to require the Company to repurchase, and upon the exercise of such right the Company shall repurchase, all or part of this Instrument (as provided hereinbelow) on the date (the "Repurchase Date") that is 20 Business Days (or such longer period as required by applicable law) after the date on which the Company gives notice of such Change of Control to the holder of this Instrument, at a purchase price equal to the Repurchase Price (as hereinafter defined). The Company agrees to give the holder of this Instrument notice, in the manner provided in Section 8(c), of any Change in Control, promptly and in any event within three (3) Business Days after the occurrence thereof.
(b) To exercise a repurchase right, the holder shall deliver to the Company on or before the 5th Business Day prior to the Repurchase Date, together with this Instrument, written notice of the holder's exercise of such right, which notice shall set forth the name of the holder, the principal amount of this Instrument to be repurchased (and, if this Instrument is to be repurchased in part, the portion of the principal amount thereof to be repurchased) and a statement that an election to exercise the repurchase right is being made thereby. Such written notice shall be irrevocable, except that the right of the holder to convert this Instrument (or the portion hereof with respect to which the repurchase right is being exercised) shall continue until the close of business on the Business Day prior to the Repurchase Date.
(c) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the holder the Repurchase Price in cash on the Repurchase Date in the manner set forth in the introductory paragraph to this Instrument.
(d) If this Instrument is to be repurchased only in part, it shall be surrendered to the Company at the Designated Office (with, if the Company so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company, duly executed by the holder hereof), and the Company shall execute and deliver to the holder, without service charge, a new Instrument containing terms and conditions identical to those contained herein and in a principal amount equal to and in exchange for the unrepurchased portion of the principal of this Instrument.
(e) For purposes of this Section 7:
(1) the term "beneficial owner" shall be determined in accordance with Rule 13d-3 promulgated by the Securities and Exchange Commission pursuant to the Exchange Act;
(2) a "Change in Control" shall be deemed to have occurred at the time, after the original issuance of this Instrument, of:
(i) the acquisition by any Person (including, for purposes of this Section 7, any group of two or more persons or entities acting together as contemplated by Section 14(d) of the Exchange Act) of beneficial ownership, directly or indirectly, through a purchase, merger or other acquisition transaction or series of transactions, of shares of capital stock of the Company or the Parent entitling such Person to exercise 50% or more of the total voting power of all shares of capital stock of the Company or the Parent entitled to vote generally in the elections of directors (any shares of voting stock of which such Person is the beneficial owner that are not then outstanding being deemed outstanding for purposes of calculating such percentage) other than any such acquisition by the Company or the Parent or any employee benefit plan of the Company or the Parent; or
(ii) any consolidation or merger of the Company or the Parent with or into, any other Person, any merger of another Person with or into the Company or the Parent, or any conveyance, transfer, sale, lease or other disposition of all or substantially all of the assets of the Company or the Parent to another Person (other than (a) any such transaction pursuant to which holders of capital stock of the Company (or if applicable, of the Parent) immediately prior to such transaction have the entitlement to exercise, directly or indirectly, 50% or more of the total voting power of all shares of capital stock entitled to vote generally in the election of directors of the continuing or surviving Person immediately after such transaction and (b) any merger (x) which does not result in any reclassification, conversion, exchange or cancellation of outstanding Common Stock or (y) which is effected solely to change the jurisdiction of incorporation of the Company or the Parent and results in a reclassification, conversion or exchange of outstanding Common Stock into solely shares of common stock);
Appears in 1 contract
Sources: Asset Purchase Agreement (Tekelec)
Right to Require Repurchase. (a) In the event that a Change in Control or a Repurchase Event (each as hereinafter defined) shall occur, then the holder of this Instrument Security shall have the right, at such holder's option, to require the Company to repurchase, and upon the exercise of such right the Company shall repurchase, all this Security, or part any portion of this Instrument (as provided hereinbelow) on the date principal amount hereof that is equal to $1,000 or any integral multiple thereof. Upon the exercise of such repurchase right pursuant to Section 3(b), the repurchase shall take place (the "Repurchase Date") (x) on the date that is 20 Business five Trading Days (or such longer period as required by applicable law) after the date on which the Company gives notice holder of such this Security delivers a Repurchase Notice if delivered in connection with a Change of Control to in Control, (y) on the date that is five Trading Days after the date on which the holder of this InstrumentSecurity delivers a Repurchase Notice in the case of the occurrence of any Repurchase Event; provided that any portion of the principal amount of this Security which has been made available to the Company shall be due within 90 days after the occurrence of an event described in clause (B) or (C) of the definition of Repurchase Event, and in each case at a purchase price equal to the Repurchase Price (as hereinafter defined). The Company agrees to give the holder of this Instrument Security notice, in the manner provided in Section 8(c9(b), of any Change in ControlControl or any Repurchase Event, promptly and in any event within three (3) Business two Trading Days after of the occurrence thereof; provided that the failure of the Company to give such notice shall not effect the holder's repurchase right under this Section 3.
(b) To exercise a repurchase right, the holder shall deliver to the Company on or before the 5th Business Day prior to the Repurchase DateCompany, together with this InstrumentSecurity, written notice of the holder's exercise of such rightright (a "Repurchase Notice"), which notice shall set forth the name of the holder, the principal amount of this Instrument Security to be repurchased (and, if this Instrument Security is to be repurchased in part, the portion of the principal amount thereof to be repurchasedrepurchased and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made thereby. The holder of this Security may deliver a Repurchase Notice at any time after the occurrence of a Change in Control or Repurchase Event. Such written notice shall be irrevocable, except that the right of the holder to convert this Instrument (or the portion hereof with respect to which the repurchase right is being exercised) shall continue until the close of business on the Business Day prior to the Repurchase Date.
(c) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the holder the Repurchase Price in cash on or prior to the Repurchase Date in the manner set forth in the introductory paragraph to this InstrumentDate.
(d) If this Instrument Security (or portion thereof) is surrendered for repurchase and is not so paid on the Repurchase Date, the principal amount of this Security (or such portion hereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the Repurchase Date at the rate of 16% per annum, payable in cash.
(e) If this Security is to be repurchased only in part, it shall be surrendered to the Company at the Designated Office (with, if the Company so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company, Company duly executed by by, the holder hereofhereof or his attorney duly authorized in writing), and the Company shall execute and deliver make available for delivery to the holder, holder without service charge, a new Instrument Security or Securities, containing identical terms and conditions identical to those contained herein and conditions, each in a an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of this Instrumentthe Security so surrendered.
(ef) For purposes of this Section 73:
(1i) the term "beneficial owner" shall be determined in accordance with Rule 13d-3 promulgated by the Securities and Exchange Commission pursuant to the Securities Exchange ActAct of 1934;
(2ii) a "Change in Control" shall be deemed to have occurred at the time, after the original issuance of this InstrumentSecurity, of:
(i1) the acquisition by any Person (including, for purposes of this Section 7, any group of two or more persons or entities acting together as contemplated by Section 14(d) of the Exchange Act) of beneficial ownership, directly or indirectly, through a purchase, merger or other acquisition transaction or series of transactions, of shares of capital stock of the Company or the Parent entitling such Person to exercise 50% or more of the total voting power of all shares of capital stock of the Company or the Parent entitled to vote generally in the elections of directors (any shares of voting stock of which such Person is the beneficial owner that are not then outstanding being deemed outstanding for purposes of calculating such percentage) other than any such acquisition by the Company or the Parent or any employee benefit plan of the Company or the ParentCompany; or
(ii2) any consolidation or merger of the Company or the Parent with or into, any other Person, any merger of another Person with or into the Company or the ParentCompany, or any conveyance, transfer, sale, lease or other disposition of all or substantially all of the assets of the Company or the Parent to another Person (other than (a) any such transaction pursuant to which holders of capital stock of the Company (or if applicable, of the Parent) Common Stock immediately prior to such transaction have the entitlement to exercise, directly or indirectly, 50% or more of the total voting power of all shares of capital stock entitled to vote generally in the election of directors of the continuing or surviving Person immediately after such transaction and (b) any merger (x) which does not result in any reclassification, conversion, exchange or cancellation of outstanding Common Stock or (y) which is effected solely to change the jurisdiction of incorporation of the Company or the Parent and results in a reclassification, conversion or exchange of outstanding Common Stock into solely shares of common stock);
(iii) the "current market price" of a share of Common Stock shall be the Closing Price of the Common Stock on the Trading Day immediately preceding the Repurchase Date; and
Appears in 1 contract
Right to Require Repurchase. (a) In the event that a Change in Control (as hereinafter defined) shall occur, then the holder of this Instrument Security shall have the right, at such holder's option, to require the Company to repurchase, and upon the exercise of such right the Company shall repurchase, all or part of this Instrument (as provided hereinbelow) Security on the date (the "Repurchase Date") that is 20 Business Days (or such longer period as required by applicable law) after the date on which the Company gives notice of such Change of Control to the holder of this InstrumentSecurity, at a purchase price equal to the Repurchase Price (as hereinafter defined). The Company agrees to give the holder of this Instrument Security notice, in the manner provided in Section 8(c), of any Change in Control, promptly and in any event within three (3) Business Trading Days after of the occurrence thereof.
(b) To exercise a repurchase right, the holder shall deliver to the Company on or before the 5th Business Day prior to the Repurchase Date, together with this InstrumentSecurity, written notice of the holder's exercise of such right, which notice shall set forth the name of the holder, the principal amount of this Instrument Security to be repurchased (and, if this Instrument Security is to be repurchased in part, the portion of the principal amount thereof to be repurchased) and a statement that an election to exercise the repurchase right is being made thereby. Such written notice shall be irrevocable, except that the right of the holder to convert this Instrument Security (or the portion hereof with respect to which the repurchase right is being exercised) shall continue until the close of business on the Business Day prior to the Repurchase Date.
(c) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the holder the Repurchase Price in cash on the Repurchase Date in the manner set forth in the introductory paragraph to this InstrumentSecurity.
(d) If this Instrument Security is to be repurchased only in part, it shall be surrendered to the Company at the Designated Office (with, if the Company so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company, Company duly executed by by, the holder hereof), and the Company shall execute and deliver to the holder, without service charge, a new Instrument Security or Securities, containing terms and conditions identical to those contained herein and in a principal amount equal to and in exchange for the unrepurchased portion of the principal of this InstrumentSecurity.
(e) For purposes of this Section 7:
(1) the term "beneficial owner" shall be determined in accordance with Rule 13d-3 promulgated by the Securities and Exchange Commission pursuant to the Exchange Act;
(2) a "Change in Control" shall be deemed to have occurred at the time, after the original issuance of this InstrumentSecurity, of:
(i) the acquisition by any Person (including, for purposes of this Section 7, any group of two or more persons or entities acting together as contemplated by Section 14(d) of the Exchange Act) of beneficial ownership, directly or indirectly, through a purchase, merger or other acquisition transaction or series of transactions, of shares of capital stock of the Company or the Parent entitling such Person to exercise 50% or more of the total voting power of all shares of capital stock of the Company or the Parent entitled to vote generally in the elections of directors (any shares of voting stock of which such Person is the beneficial owner that are not then outstanding being deemed outstanding for purposes of calculating such percentage) other than any such acquisition by the Company or the Parent or any employee benefit plan of the Company or the ParentCompany; or
(ii) any consolidation or merger of the Company or the Parent with or into, any other Person, any merger of another Person with or into the Company or the ParentCompany, or any conveyance, transfer, sale, lease or other disposition of all or substantially all of the assets of the Company or the Parent to another Person (other than (a) any such transaction pursuant to which holders of capital stock of the Company (or if applicable, of the Parent) Common Stock immediately prior to such transaction have the entitlement to exercise, directly or indirectly, 50% or more of the total voting power of all shares of capital stock entitled to vote generally in the election of directors of the continuing or surviving Person immediately after such transaction and (b) any merger (x) which does not result in any reclassification, conversion, exchange or cancellation of outstanding Common Stock or (y) which is effected solely to change the jurisdiction of incorporation of the Company or the Parent and results in a reclassification, conversion or exchange of outstanding Common Stock into solely shares of common stock);
Appears in 1 contract
Sources: Asset Purchase Agreement (Tekelec)
Right to Require Repurchase. (a) In the event that a Change in Control (as hereinafter defined) shall occur, then the holder of this Instrument shall have the right, at such holder's option, to require the Company to repurchase, and upon the exercise of such right the Company shall repurchase, all or part of this Instrument (as provided hereinbelow) on the date (the "Repurchase DateREPURCHASE DATE") that is 20 Business Days (or such longer period as required by applicable law) after the date on which the Company gives notice of such Change of Control to the holder of this Instrument, at a purchase price equal to the Repurchase Price (as hereinafter defined). The Company agrees to give the holder of this Instrument notice, in the manner provided in Section 8(cSECTION 8(C), of any Change in Control, promptly and in any event within three (3) Business Days after the occurrence thereof.
(b) To exercise a repurchase right, the holder shall deliver to the Company on or before the 5th Business Day prior to the Repurchase Date, together with this Instrument, written notice of the holder's exercise of such right, which notice shall set forth the name of the holder, the principal amount of this Instrument to be repurchased (and, if this Instrument is to be repurchased in part, the portion of the principal amount thereof to be repurchased) and a statement that an election to exercise the repurchase right is being made thereby. Such written notice shall be irrevocable, except that the right of the holder to convert this Instrument (or the portion hereof with respect to which the repurchase right is being exercised) shall continue until the close of business on the Business Day prior to the Repurchase Date.
(c) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the holder the Repurchase Price in cash on the Repurchase Date in the manner set forth in the introductory paragraph to this Instrument.
(d) If this Instrument is to be repurchased only in part, it shall be surrendered to the Company at the Designated Office (with, if the Company so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company, duly executed by the holder hereof), and the Company shall execute and deliver to the holder, without service charge, a new Instrument containing terms and conditions identical to those contained herein and in a principal amount equal to and in exchange for the unrepurchased portion of the principal of this Instrument.
(e) For purposes of this Section SECTION 7:
(1) the term "beneficial owner" shall be determined in accordance with Rule 13d-3 promulgated by the Securities and Exchange Commission pursuant to the Exchange Act;
(2) a "Change in ControlCHANGE IN CONTROL" shall be deemed to have occurred at the time, after the original issuance of this Instrument, of:
(i) the acquisition by any Person (including, for purposes of this Section SECTION 7, any group of two or more persons or entities acting together as contemplated by Section 14(d) of the Exchange Act) of beneficial ownership, directly or indirectly, through a purchase, merger or other acquisition transaction or series of transactions, of shares of capital stock of the Company or the Parent entitling such Person to exercise 50% or more of the total voting power of all shares of capital stock of the Company or the Parent entitled to vote generally in the elections of directors (any shares of voting stock of which such Person is the beneficial owner that are not then outstanding being deemed outstanding for purposes of calculating such percentage) other than any such acquisition by the Company or the Parent or any employee benefit plan of the Company or the Parent; or
(ii) any consolidation or merger of the Company or the Parent with or into, any other Person, any merger of another Person with or into the Company or the Parent, or any conveyance, transfer, sale, lease or other disposition of all or substantially all of the assets of the Company or the Parent to another Person (other than (a) any such transaction pursuant to which holders of capital stock of the Company (or if applicable, of the Parent) immediately prior to such transaction have the entitlement to exercise, directly or indirectly, 50% or more of the total voting power of all shares of capital stock entitled to vote generally in the election of directors of the continuing or surviving Person immediately after such transaction and (b) any merger (x) which does not result in any reclassification, conversion, exchange or cancellation of outstanding Common Stock or (y) which is effected solely to change the jurisdiction of incorporation of the Company or the Parent and results in a reclassification, conversion or exchange of outstanding Common Stock into solely shares of common stock);
Appears in 1 contract
Sources: Asset Purchase Agreement (Catapult Communications Corp)
Right to Require Repurchase. (a) In Promptly and in any event within 20 days after the event that occurrence of a Change in Control (as hereinafter defined) shall occurControl, then the holder of this Instrument shall have the right, at such holder's option, to require the Company to repurchase, and upon the exercise of such right the Company shall repurchase, all or part of this Instrument deliver a Company Notice (as provided hereinbelowdefined in Section 1403) to the holders of all Outstanding Securities which shall offer to prepay all Securities on the date therein specified (the "Repurchase Date") that is 20 ), which shall be a Business Days (or such longer period as required by applicable law) Day not less than 30 nor more than 60 days after the date on which the Company gives notice of such Change of Control to the holder of this InstrumentCompany Notice, at a purchase price equal to 101% of the principal amount of the Securities to be repurchased plus interest accrued to the Repurchase Price Date (as hereinafter definedthe "Repurchase Price"). The Company agrees to give the holder ; provided, however, that installments of this Instrument notice, in the manner provided in Section 8(c), of any Change in Control, promptly and in any event within three (3) Business Days after the occurrence thereof.
(b) To exercise a repurchase right, the holder shall deliver to the Company interest on Securities whose Stated Maturity is on or before the 5th Business Day prior to the Repurchase Date, together with this Instrument, written notice of Date shall be payable in cash to the holder's exercise Holders of such rightSecurities, which notice shall set forth the name of the holderor one or more Predecessor Securities, the principal amount of this Instrument to be repurchased (and, if this Instrument is to be repurchased in part, the portion of the principal amount thereof to be repurchased) and a statement that an election to exercise the repurchase right is being made thereby. Such written notice shall be irrevocable, except that the right of the holder to convert this Instrument (or the portion hereof with respect to which the repurchase right is being exercised) shall continue until registered as such at the close of business on the Business Day prior relevant Regular Record Date according to their terms and the provisions of Section 307. Such right to require the repurchase of the Securities shall not continue after a discharge of the Company from its obligations with respect to the Repurchase Date.
(c) In the event a repurchase right shall be exercised Securities in accordance with the terms hereofArticle Four, unless a Change of Control shall have occurred prior to such discharge. The Repurchase Price shall be paid in cash; provided, however, that failure of the Company shall to pay or cause to be paid to the holder the Repurchase Price in cash on the Repurchase Date in the manner set forth cash shall constitute an Event of Default for purposes of Section 501(1) hereof. Whenever in the introductory paragraph this Indenture (including Sections 202, 301, 501(2) and 508) there is a reference, in an context, to this Instrument.
(d) If this Instrument is to be repurchased only in part, it shall be surrendered to the Company at the Designated Office (with, if the Company so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company, duly executed by the holder hereof), and the Company shall execute and deliver to the holder, without service charge, a new Instrument containing terms and conditions identical to those contained herein and in a principal amount equal to and in exchange for the unrepurchased portion of the principal of this Instrument.
(e) For purposes any Security as of this Section 7:
(1) the term "beneficial owner" shall be determined in accordance with Rule 13d-3 promulgated by the Securities and Exchange Commission pursuant to the Exchange Act;
(2) a "Change in Control" any time, such reference shall be deemed to have occurred include reference to the Repurchase Price payable in respect of such Security to the extent that such Repurchase Price is, was or would be so payable at the such time, after and express mention of the original issuance Repurchase Price in any provision of this Instrument, of:
(i) Indenture shall not be construed as excluding the acquisition by any Person (including, for purposes Repurchase Price in those provisions of this Section 7, any group of two or more persons or entities acting together as contemplated by Section 14(d) of the Exchange Act) of beneficial ownership, directly or indirectly, through a purchase, merger or other acquisition transaction or series of transactions, of shares of capital stock of the Company or the Parent entitling Indenture when such Person to exercise 50% or more of the total voting power of all shares of capital stock of the Company or the Parent entitled to vote generally in the elections of directors (any shares of voting stock of which such Person express mention is the beneficial owner that are not then outstanding being deemed outstanding for purposes of calculating such percentage) other than any such acquisition by the Company or the Parent or any employee benefit plan of the Company or the Parent; or
(ii) any consolidation or merger of the Company or the Parent with or into, any other Person, any merger of another Person with or into the Company or the Parent, or any conveyance, transfer, sale, lease or other disposition of all or substantially all of the assets of the Company or the Parent to another Person (other than (a) any such transaction pursuant to which holders of capital stock of the Company (or if applicable, of the Parent) immediately prior to such transaction have the entitlement to exercise, directly or indirectly, 50% or more of the total voting power of all shares of capital stock entitled to vote generally in the election of directors of the continuing or surviving Person immediately after such transaction and (b) any merger (x) which does not result in any reclassification, conversion, exchange or cancellation of outstanding Common Stock or (y) which is effected solely to change the jurisdiction of incorporation of the Company or the Parent and results in a reclassification, conversion or exchange of outstanding Common Stock into solely shares of common stock)made;
Appears in 1 contract
Sources: Indenture (Budget Group Inc)
Right to Require Repurchase. (a) In the event that a Change in of Control (as hereinafter defined) shall occur, then the holder of this Instrument each Holder shall have the right, at such holderHolder's option, to require the Company to repurchase, and upon the exercise of such right the Company shall repurchase, all of such Holder's Securities, or part any portion of this Instrument (as provided hereinbelow) the principal amount thereof that is equal to $1,000 or any integral multiple thereof, on the date (the "Repurchase Date") that is 20 Business Days (or such longer period as required by applicable law) 45 days after the date on which the Company gives notice of such Change of Control Notice (as defined in Section 14.3) is given to the holder of this Instrument, Holders at a purchase price equal to the Repurchase Price (as hereinafter defined). The Company agrees to give the holder 100% of this Instrument notice, in the manner provided in Section 8(c), of any Change in Control, promptly and in any event within three (3) Business Days after the occurrence thereof.
(b) To exercise a repurchase right, the holder shall deliver to the Company on or before the 5th Business Day prior to the Repurchase Date, together with this Instrument, written notice of the holder's exercise of such right, which notice shall set forth the name of the holder, the principal amount of this Instrument the Securities to be repurchased plus interest accrued to the Repurchase Date (andthe "Repurchase Price"); PROVIDED, if this Instrument HOWEVER, that installments of interest on Securities whose Stated Maturity is to be repurchased in part, the portion of the principal amount thereof to be repurchased) and a statement that an election to exercise the repurchase right is being made thereby. Such written notice shall be irrevocable, except that the right of the holder to convert this Instrument (on or the portion hereof with respect to which the repurchase right is being exercised) shall continue until the close of business on the Business Day prior to the 72 Repurchase Date.
(c) In the event a repurchase right Date shall be exercised in accordance with payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such on the relevant Record Date according to their terms hereofand the provisions of Section 3.8. At the option of the Company, the Company shall pay or cause to Repurchase Price may be paid in cash or, subject to the holder fulfillment by the Company of the conditions set forth Section 14.2, by delivery of shares of Common Stock having a fair market value equal to the Repurchase Price as described in Section 14.2(a). Whenever in this Indenture (including Sections 2.2, 3.1, 5.1(1) and 5.8) there is a reference, in any context, to the principal of any Security as of any time, such reference shall be deemed to include reference to the Repurchase Price payable in respect of such Security to the extent that such Repurchase Price is, was or would be so payable at such time, and express mention of the Repurchase Price in cash on any provision of this Indenture shall not be construed as excluding the Repurchase Date Price in the manner set forth in the introductory paragraph to those provisions of this Instrument.
(d) If this Instrument Indenture when such express mention is to be repurchased only in partnot made; PROVIDED, it shall be surrendered to the Company at the Designated Office (withHOWEVER, if the Company so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company, duly executed by the holder hereof), and the Company shall execute and deliver to the holder, without service charge, a new Instrument containing terms and conditions identical to those contained herein and in a principal amount equal to and in exchange that for the unrepurchased portion of the principal of this Instrument.
(e) For purposes of this Section 7:
(1) the term "beneficial owner" shall be determined in accordance with Rule 13d-3 promulgated by the Securities and Exchange Commission pursuant to the Exchange Act;
(2) a "Change in Control" Article Thirteen, such reference shall be deemed to have occurred at include reference to the time, after Repurchase Price only if the original issuance of this Instrument, of:
(i) the acquisition by any Person (including, for purposes of this Section 7, any group of two or more persons or entities acting together as contemplated by Section 14(d) of the Exchange Act) of beneficial ownership, directly or indirectly, through a purchase, merger or other acquisition transaction or series of transactions, of shares of capital stock of the Company or the Parent entitling such Person to exercise 50% or more of the total voting power of all shares of capital stock of the Company or the Parent entitled to vote generally Repurchase Price is payable in the elections of directors (any shares of voting stock of which such Person is the beneficial owner that are not then outstanding being deemed outstanding for purposes of calculating such percentage) other than any such acquisition by the Company or the Parent or any employee benefit plan of the Company or the Parent; or
(ii) any consolidation or merger of the Company or the Parent with or into, any other Person, any merger of another Person with or into the Company or the Parent, or any conveyance, transfer, sale, lease or other disposition of all or substantially all of the assets of the Company or the Parent to another Person (other than (a) any such transaction pursuant to which holders of capital stock of the Company (or if applicable, of the Parent) immediately prior to such transaction have the entitlement to exercise, directly or indirectly, 50% or more of the total voting power of all shares of capital stock entitled to vote generally in the election of directors of the continuing or surviving Person immediately after such transaction and (b) any merger (x) which does not result in any reclassification, conversion, exchange or cancellation of outstanding Common Stock or (y) which is effected solely to change the jurisdiction of incorporation of the Company or the Parent and results in a reclassification, conversion or exchange of outstanding Common Stock into solely shares of common stock);cash.
Appears in 1 contract
Sources: Indenture (Interim Services Inc)
Right to Require Repurchase. (a) In the event that a Change in Control or a Repurchase Event (each as hereinafter defined) shall occur, then the holder of this Instrument Security shall have the right, at such holder's option, to require the Company to repurchase, and upon the exercise of such right the Company shall repurchase, all this Security, or part any portion of this Instrument (as provided hereinbelow) on the date principal amount hereof that is equal to $1,000 or any integral multiple thereof. Upon the exercise of such repurchase right pursuant to Section 3(b), the repurchase shall take place (the "Repurchase Date") (w) on the date that is 20 Business five Trading Days (or such longer period as required by applicable law) after the date on which the Company gives notice holder of such this Security delivers a Repurchase Notice if delivered in connection with a Change of Control to in Control, (x) on the date that is five Trading Days after the date on which the holder of this InstrumentSecurity delivers a Repurchase Notice in the case of a the occurrence of an event described in clause (A) or (D) of the definition of Repurchase Event, (y) within 90 days after the occurrence of an event described in clause (B) of the definition of Repurchase Event, and (z) on the date that is 18 months after the date of this Security in the case of the occurrence of a Repurchase Event described in clause (C) of the definition of Repurchase Event, and in each case at a purchase price equal to the Repurchase Price (as hereinafter defined). The Company agrees to give the holder of this Instrument Security notice, in the manner provided in Section 8(c9(b), of any Change in ControlControl or any Repurchase Event, promptly and in any event within three (3) Business two Trading Days after of the occurrence thereof; provided that the failure of the Company to give such notice shall not effect the holder's repurchase right under this Section 3.
(b) To exercise a repurchase right, the holder shall deliver to the Company on or before the 5th Business Day prior to the Repurchase DateCompany, together with this InstrumentSecurity, written notice of the holder's exercise of such rightright (a "Repurchase Notice"), which notice shall set forth the name of the holder, the principal amount of this Instrument Security to be repurchased (and, if this Instrument Security is to be repurchased in part, the portion of the principal amount thereof to be repurchasedrepurchased and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made thereby. The holder of this Security may deliver a Repurchase Notice at any time after the occurrence of a Change in Control or Repurchase Event. Such written notice shall be irrevocable, except that the right of the holder to convert this Instrument (or the portion hereof with respect to which the repurchase right is being exercised) shall continue until the close of business on the Business Day prior to the Repurchase Date.
(c) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the holder the Repurchase Price in cash on or prior to the Repurchase Date in the manner set forth in the introductory paragraph to this InstrumentDate.
(d) If this Instrument Security (or portion thereof) is surrendered for repurchase and is not so paid on the Repurchase Date, the principal amount of this Security (or such portion hereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the Repurchase Date at the rate of 16% per annum, payable in cash.
(e) If this Security is to be repurchased only in part, it shall be surrendered to the Company at the Designated Office (with, if the Company so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company, Company duly executed by by, the holder hereofhereof or his attorney duly authorized in writing), and the Company shall execute and deliver make available for delivery to the holder, holder without service charge, a new Instrument Security or Securities, containing identical terms and conditions identical to those contained herein and conditions, each in a an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of this Instrumentthe Security so surrendered.
(ef) For purposes of this Section 73:
(1i) the term "beneficial owner" shall be determined in accordance with Rule 13d-3 promulgated by the Securities and Exchange Commission pursuant to the Securities Exchange ActAct of 1934;
(2ii) a "Change in Control" shall be deemed to have occurred at the time, after the original issuance of this InstrumentSecurity, of:
(i1) the acquisition by any Person (including, for purposes of this Section 7, any group of two or more persons or entities acting together as contemplated by Section 14(d) of the Exchange Act) of beneficial ownership, directly or indirectly, through a purchase, merger or other acquisition transaction or series of transactions, of shares of capital stock of the Company or the Parent entitling such Person to exercise 50% or more of the total voting power of all shares of capital stock of the Company or the Parent entitled to vote generally in the elections of directors (any shares of voting stock of which such Person is the beneficial owner that are not then outstanding being deemed outstanding for purposes of calculating such percentage) other than any such acquisition by the Company or the Parent or any employee benefit plan of the Company or the ParentCompany; or
(ii2) any consolidation or merger of the Company or the Parent with or into, any other Person, any merger of another Person with or into the Company or the ParentCompany, or any conveyance, transfer, sale, lease or other disposition of all or substantially all of the assets of the Company or the Parent to another Person (other than (a) any such transaction pursuant to which holders of capital stock of the Company (or if applicable, of the Parent) Common Stock immediately prior to such transaction have the entitlement to exercise, directly or indirectly, 50% or more of the total voting power of all shares of capital stock entitled to vote generally in the election of directors of the continuing or surviving Person immediately after such transaction and (b) any merger (x) which does not result in any reclassification, conversion, exchange or cancellation of outstanding Common Stock or (y) which is effected solely to change the jurisdiction of incorporation of the Company or the Parent and results in a reclassification, conversion or exchange of outstanding Common Stock into solely shares of common stock);
(iii) the "current market price" of a share of Common Stock shall be the Closing Price of the Common Stock on the Trading Day immediately preceding the Repurchase Date; and
Appears in 1 contract
Right to Require Repurchase. (a) In the event that a Change in Control (as hereinafter defined) shall occur, then the holder Holder of this Instrument Note shall have the right, at such holderHolder's option, to require the Company to repurchase, and upon the exercise of such right the Company shall repurchase, all this Note, or part any portion of this Instrument (as provided hereinbelow) the principal amount hereof that is equal to $1,000 or any integral multiple thereof, on the date (the "Repurchase Date") that is 20 Business Days (or such longer period as required by applicable law) after the date on which the Company gives notice of such Change of Control to the holder of this Instrumentoccurs, at a purchase price equal to the Repurchase Price (as hereinafter defined). The Company agrees to give the holder of this Instrument noticeHolder, in the manner provided in Section 8(c7(b), of any Change in Control, promptly and in any event within three ten (310) Business Trading Days after prior to the occurrence thereof.
(b) To exercise a repurchase right, the holder Holder shall deliver to the Company on or before the 5th Business Day 2nd day prior to the Repurchase Date, together with this InstrumentNote, written notice of the holderHolder's exercise of such right, which notice shall set forth the name of the holderHolder, the principal amount of this Instrument Note to be repurchased (and, if this Instrument Note is to be repurchased in part, the portion of the principal amount thereof to be repurchased) and a statement that an election to exercise the repurchase right is being made thereby. Such written notice shall be irrevocable, except that the right of the holder Holder to convert this Instrument Note (or the portion hereof with respect to which the repurchase right is being exercised) shall continue until the close of business on the Business Trading Day prior to the Repurchase Date.
(c) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the holder Holder the Repurchase Price in cash on the Repurchase Date in the manner set forth in the introductory paragraph to this InstrumentNote.
(d) If this Instrument Note is to be repurchased only in part, it shall be surrendered to the Company at the Designated Office (with, if the Company so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company, Company duly executed by by, the holder hereofHolder hereof or his attorney duly authorized in writing), and the Company shall execute and deliver make available for delivery to the holder, Holder without service charge, a new Instrument Note or Notes, containing identical terms and conditions identical to those contained herein and conditions, each in a an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of this Instrumentthe Note so surrendered.
(e) For purposes of this Section 73:
(1) the The term "beneficial owner" shall be determined in accordance with Rule 13d-3 promulgated by the Securities and Exchange Commission pursuant to the Exchange Act;.
(2) a A "Change in Control" shall be deemed to have occurred at the time, after the original issuance of this InstrumentNote, of:
(i) the acquisition by any Person or group (including, for purposes of this Section 7, any group of two or more persons or entities acting together as contemplated by Section 14(d) within the meaning of the Exchange ActAct and the rules of the Commission thereunder as in effect on the date hereof) of beneficial ownership, directly or indirectly, through a purchase, merger or other acquisition transaction or series of transactions, of shares of capital stock of the Company or the Parent entitling such Person to exercise 50% or more of the total voting power of all shares of capital stock of the Company or the Parent entitled to vote generally in the elections of directors (any shares of voting stock of which such Person is the beneficial owner that are not then outstanding being deemed outstanding for purposes of calculating such percentage) other than any such acquisition by the Company or the Parent or any employee benefit plan of the Company or the ParentCompany; or
(ii) any consolidation or merger of the Company or the Parent with or into, any other Person, any merger of another Person with or into the Company or the ParentCompany, or any conveyance, transfer, sale, lease or other disposition of all or substantially all of the assets of the Company or the Parent to another Person (other than (a) any such transaction pursuant to which holders of capital stock of the Company (or if applicable, of the Parent) Common Stock immediately prior to such transaction have the entitlement to exercise, directly or indirectly, 50% or more of the total voting power of all shares of capital stock entitled to vote generally in the election of directors of the continuing or surviving Person immediately after such transaction and (b) any merger (x) which does not result in any reclassification, conversion, exchange or cancellation of outstanding Common Stock or (y) which is effected solely to change the jurisdiction of incorporation of the Company or the Parent and results in a reclassification, conversion or exchange of outstanding Common Stock into solely shares of common stock);; or
(iii) the occupation of a majority of the seats (other than vacant seats) on the board of directors of the Company by Persons who were neither (i) nominated by the board of directors of the Company nor (ii) appointed by directors so nominated.
(3) The "current market price" of a share of Common Stock shall be the Closing Price of the Common Stock on the Trading Day immediately preceding the Repurchase Date.
Appears in 1 contract
Sources: Convertible Note (Zap)
Right to Require Repurchase. (a) In the event that a Change in Control (as hereinafter defined) shall occur, then the holder of this Instrument Security shall have the right, at such holder's option, to require the Company to repurchase, and upon the exercise of such right the Company shall repurchase, all this Security, or part any portion of this Instrument (as provided hereinbelow) the principal amount hereof that is equal to $1,000 or any integral multiple thereof, on the date (the "Repurchase Date") that is 20 Business thirty (30) Trading Days (or such longer period as required by applicable law) after the date on which the Company gives notice of such Change of Control to the holder of this InstrumentSecurity, at a purchase price equal to the Repurchase Price (as hereinafter defined). The Company agrees to give the holder of this Instrument Security notice, in the manner provided in Section 8(c8(b), of any Change in Control, promptly and in any event within three five (35) Business Trading Days after of the occurrence thereof.
(b) To exercise a repurchase right, the holder shall deliver to the Company on or before the 5th third (3rd) Business Day prior to the Repurchase Date, together with this InstrumentSecurity, written notice of the holder's exercise of such right, which notice shall set forth the name of the holder, the principal amount of this Instrument Security to be repurchased (and, if this Instrument Security is to be repurchased in part, the portion of the principal amount thereof to be repurchased) and a statement that an election to exercise the repurchase right is being made thereby. Such written notice shall be irrevocable, except that the right of the holder to convert this Instrument Security (or the portion hereof with respect to which the repurchase right is being exercised) shall continue until the close of business on the Business Trading Day prior to the Repurchase Date.
(c) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the holder the Repurchase Price in cash on the Repurchase Date in the manner set forth in the introductory paragraph to this InstrumentSecurity.
(d) If this Instrument Security is to be repurchased only in part, it shall be surrendered to the Company at the Designated Office (with, if the Company so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company, Company duly executed by by, the holder hereofhereof or his attorney duly authorized in writing), and the Company shall execute and deliver make available for delivery to the holder, holder without service charge, a new Instrument Security or Securities, containing identical terms and conditions identical to those contained herein and conditions, each in a an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of this Instrumentthe Security so surrendered.
(e) For purposes of this Section 72:
(1) the term "beneficial owner" shall be determined in accordance with Rule 13d-3 promulgated by the Securities and Exchange Commission pursuant to the Exchange ActExchange;
(2) a "Change in Control" shall be deemed to have occurred at the time, after the original issuance of this InstrumentSecurity, of:
(i) the acquisition by any Person (including, for purposes of this Section 7, any group of two or more persons or entities acting together as contemplated by Section 14(d) of the Exchange Act) of beneficial ownership, directly or indirectly, through a purchase, merger or other acquisition transaction or series of transactions, of shares of capital stock of the Company or the Parent entitling such Person to exercise 50% or more of the total voting power of all shares of capital stock of the Company or the Parent entitled to vote generally in the elections of directors (any shares of voting stock of which such Person is the beneficial owner that are not then outstanding being deemed outstanding for purposes of calculating such percentage) other than any such acquisition by the Company or the Parent or any employee benefit plan of the Company or the ParentCompany; or
(ii) any consolidation or merger of the Company or the Parent with or into, any other Person, any merger of another Person with or into the Company or the ParentCompany, or any conveyance, transfer, sale, lease or other disposition of all or substantially all of the assets of the Company or the Parent to another Person (other than (a) any such transaction pursuant to which holders of capital stock of the Company (or if applicable, of the Parent) Common Stock immediately prior to such transaction have the entitlement to exercise, directly or indirectly, 50% or more of the total voting power of all shares of capital stock entitled to vote generally in the election of directors of the continuing or surviving Person immediately after such transaction and (b) any merger (x) which does not result in any reclassification, conversion, exchange or cancellation of outstanding Common Stock or (y) which is effected solely to change the jurisdiction of incorporation of the Company or the Parent and results in a reclassification, conversion or exchange of outstanding Common Stock into solely shares of common stock);; or
(iii) the occupation of a majority of the seats (other than vacant seats) on the board of directors of the Company by Persons who were neither (i) nominated by the board of directors of the Company nor (ii) appointed by directors so nominated. However, a Change in Control will not be deemed to have occurred if (i) the Closing Price per share of the Company's Common Stock for any five (5) Trading Days within the period of ten (10) consecutive Trading Days ending immediately after the later of the Change in Control or the public announcement of the Change in Control, in the case of a Change in Control relating to an acquisition of capital stock, or the period of ten (10) consecutive Trading Days ending immediately before the Change in Control, in the case of Change in Control relating to a merger, consolidation or asset sale, equals or exceeds 105% of the conversion price of the Securities (for purposes hereof the Conversion Price being equal to $1,000 divided by the Conversion Rate then in effect); or (ii) 95% of the consideration (excluding cash payments for fractional shares and cash payments made pursuant to dissenters' appraisal rights) in a merger or consolidation otherwise constituting the Change of Control described in clause (ii) above consists of shares of common stock traded or to be traded immediately following such Change of Control on a national securities exchange or quoted on the Nasdaq National Market and as a result of such transaction or transactions this Security becomes convertible solely into such common stock.
(3) the "current market price" of a share of Common Stock shall be the Closing Price of the Common Stock on the Trading Day immediately preceding the Repurchase Date; and
Appears in 1 contract
Right to Require Repurchase. (a) In the event that a Change in Control (as hereinafter defined) Designated Event shall occur, then the holder each Holder of this Instrument Securities shall have the rightright (the "Repurchase Right"), at such holderHolder's option, to require the Company to repurchase, and upon the exercise of such right Repurchase Right the Company shall repurchase, all or part of this Instrument (as provided hereinbelow) such Holder's Securities on the date (the "Repurchase Date") that is 20 Business Days (or such longer period as required by applicable law) 45 days after the date on which of the Company gives notice of such Change of Control to the holder of this Instrument, Notice at a purchase price equal to 100% of the principal amount of the securities to be repurchased plus accrued and unpaid interest to the Repurchase Price Date (as hereinafter definedthe "Repurchase Price"). The Company agrees to give the holder ; PROVIDED, HOWEVER, that installments of this Instrument notice, in the manner provided in Section 8(c), of any Change in Control, promptly and in any event within three (3) Business Days after the occurrence thereof.
(b) To exercise a repurchase right, the holder shall deliver to the Company interest on Bearer Definitive Securities whose Stated Maturity is on or before the 5th Business Day prior to the Repurchase DateDate shall be payable only upon presentation and surrender of coupons for such interest (at an office or agency outside the United States, together with this Instrument, written notice except as otherwise provided in the form of the holder's exercise of such right, which notice shall Bearer Definitive Security set forth the name in Exhibit A hereto); and PROVIDED FURTHER, that installments of the holder, the principal amount of this Instrument to be repurchased (and, if this Instrument interest on Registered Securities whose Stated Maturity is to be repurchased in part, the portion of the principal amount thereof to be repurchased) and a statement that an election to exercise the repurchase right is being made thereby. Such written notice shall be irrevocable, except that the right of the holder to convert this Instrument (on or the portion hereof with respect to which the repurchase right is being exercised) shall continue until the close of business on the Business Day prior to the Repurchase Date.
(c) In the event a repurchase right Date shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid payable to the holder Holders of such Securities, or one or more Predecessor Securities, registered as such on the relevant Record Date according to their terms and the provisions of Section 2.07. Whenever in this Indenture there is a reference, in any context, to the principal of any Security as of any time, such reference shall be deemed to include reference to the Repurchase Price payable in respect of such Security to the extent that such Repurchase Price is, was or would be so payable at such time, and express mention of the Repurchase Price in cash on any provision of this Indenture shall not be construed as excluding the Repurchase Date Price in the manner set forth in the introductory paragraph to this Instrument.
(d) If this Instrument is to be repurchased only in part, it shall be surrendered to the Company at the Designated Office (with, if the Company so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company, duly executed by the holder hereof), and the Company shall execute and deliver to the holder, without service charge, a new Instrument containing terms and conditions identical to those contained herein and in a principal amount equal to and in exchange for the unrepurchased portion of the principal provisions of this InstrumentIndenture when such express mention is not made.
(e) For purposes of this Section 7:
(1) the term "beneficial owner" shall be determined in accordance with Rule 13d-3 promulgated by the Securities and Exchange Commission pursuant to the Exchange Act;
(2) a "Change in Control" shall be deemed to have occurred at the time, after the original issuance of this Instrument, of:
(i) the acquisition by any Person (including, for purposes of this Section 7, any group of two or more persons or entities acting together as contemplated by Section 14(d) of the Exchange Act) of beneficial ownership, directly or indirectly, through a purchase, merger or other acquisition transaction or series of transactions, of shares of capital stock of the Company or the Parent entitling such Person to exercise 50% or more of the total voting power of all shares of capital stock of the Company or the Parent entitled to vote generally in the elections of directors (any shares of voting stock of which such Person is the beneficial owner that are not then outstanding being deemed outstanding for purposes of calculating such percentage) other than any such acquisition by the Company or the Parent or any employee benefit plan of the Company or the Parent; or
(ii) any consolidation or merger of the Company or the Parent with or into, any other Person, any merger of another Person with or into the Company or the Parent, or any conveyance, transfer, sale, lease or other disposition of all or substantially all of the assets of the Company or the Parent to another Person (other than (a) any such transaction pursuant to which holders of capital stock of the Company (or if applicable, of the Parent) immediately prior to such transaction have the entitlement to exercise, directly or indirectly, 50% or more of the total voting power of all shares of capital stock entitled to vote generally in the election of directors of the continuing or surviving Person immediately after such transaction and (b) any merger (x) which does not result in any reclassification, conversion, exchange or cancellation of outstanding Common Stock or (y) which is effected solely to change the jurisdiction of incorporation of the Company or the Parent and results in a reclassification, conversion or exchange of outstanding Common Stock into solely shares of common stock);
Appears in 1 contract
Sources: Indenture (Macerich Co)
Right to Require Repurchase. (a) In the event that a Change in Control (as hereinafter defined) shall occur, then the holder of this Instrument Security shall have the right, at such holder's option, to require the Company to repurchase, and upon the exercise of such right the Company shall repurchase, all this Security, or part any portion of this Instrument (as provided hereinbelow) the principal amount hereof that is equal to $1,000 or any integral multiple thereof, on the date (the "Repurchase Date") that is 20 Business 30 Trading Days (or such longer period as required by applicable law) after the date on which the Company gives notice of such Change of Control to the holder of this InstrumentSecurity, at a purchase price equal to the Repurchase Price (as hereinafter defined). The Company agrees to give the holder of this Instrument Security notice, in the manner provided in Section 8(c9(b), of any Change in Control, promptly and in any event within three five (35) Business Trading Days after of the occurrence thereof.
(b) To exercise a repurchase right, the holder shall deliver to the Company on or before the 5th Business Day day prior to the Repurchase Date, together with this InstrumentSecurity, written notice of the holder's exercise of such right, which notice shall set forth the name of the holder, the principal amount of this Instrument Security to be repurchased (and, if this Instrument Security is to be repurchased in part, the portion of the principal amount thereof to be repurchased) and a statement that an election to exercise the repurchase right is being made thereby. Such written notice shall be irrevocable, except that the right of the holder to convert this Instrument Security (or the portion hereof with respect to which the repurchase right is being exercised) shall continue until the close of business on the Business Trading Day prior to the Repurchase Date.
(c) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the holder the Repurchase Price in cash on the Repurchase Date in the manner set forth in the introductory paragraph to this InstrumentSecurity.
(d) If this Instrument Security is to be repurchased only in part, it shall be surrendered to the Company at the Designated Office (with, if the Company so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company, Company duly executed by by, the holder hereofhereof or his attorney duly authorized in writing), and the Company shall execute and deliver make available for delivery to the holder, holder without service charge, a new Instrument Security or Securities, containing identical terms and conditions identical to those contained herein and conditions, each in a an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of this Instrumentthe Security so surrendered.
(e) For purposes of this Section 73:
(1) the term "beneficial owner" shall be determined in accordance with Rule 13d-3 promulgated by the Securities and Exchange Commission pursuant to the Exchange Act;
(2) a "Change in Control" shall be deemed to have occurred at the time, after the original issuance of this InstrumentSecurity, of:
(i) the acquisition by any Person (including, for purposes of this Section 7, any group of two or more persons or entities acting together as contemplated by Section 14(d) of the Exchange Act) of beneficial ownership, directly or indirectly, through a purchase, merger or other acquisition transaction or series of transactions, of shares of capital stock of the Company or the Parent entitling such Person to exercise 50% or more of the total voting power of all shares of capital stock of the Company or the Parent entitled to vote generally in the elections of directors (any shares of voting stock of which such Person is the beneficial owner that are not then outstanding being deemed outstanding for purposes of calculating such percentage) other than any such acquisition by the Company or the Parent or any employee benefit plan of the Company or the ParentCompany; or
(ii) any consolidation or merger of the Company or the Parent with or into, any other Person, any merger of another Person with or into the Company or the ParentCompany, or any conveyance, transfer, sale, lease or other disposition of all or substantially all of the assets of the Company or the Parent to another Person (other than (a) any such transaction pursuant to which holders of capital stock of the Company (or if applicable, of the Parent) Common Stock immediately prior to such transaction have the entitlement to exercise, directly or indirectly, 50% or more of the total voting power of all shares of capital stock entitled to vote generally in the election of directors of the continuing or surviving Person immediately after such transaction and (b) any merger (x) which does not result in any reclassification, conversion, exchange or cancellation of outstanding Common Stock or (y) which is effected solely to change the jurisdiction of incorporation of the Company or the Parent and results in a reclassification, conversion or exchange of outstanding Common Stock into solely shares of common stock);; However, a Change in Control will not be deemed to have occurred if (i) the Closing Price per share of the Company's Common Stock for any five (5) Trading Days within the period of ten (10) consecutive Trading Days ending immediately after the later of the Change in Control or the public announcement of the Change in Control, in the case of a Change in Control relating to an acquisition of capital stock, or the period of ten (10) consecutive Trading Days ending immediately before the Change in Control, in the case of Change in Control relating to a merger, consolidation or asset sale, equals or exceeds 105% of the Conversion Price of this Security; or (ii) 95% of the consideration (excluding cash payments for fractional shares and cash payments made pursuant to dissenters' appraisal rights) in a merger or consolidation otherwise constituting the Change of Control described in clause (ii) above consists of shares of common stock traded or to be traded immediately following such Change of Control on a national securities exchange or quoted on the Nasdaq National Market and as a result of such transaction or transactions this Security becomes convertible solely into such common stock.
(iii) the "current market price" of a share of Common Stock shall be the Closing Price of the Common Stock on the Trading Day immediately preceding the Repurchase Date; and
Appears in 1 contract
Right to Require Repurchase. (a) In the event that a Change in Control or a Repurchase Event (each as hereinafter defined) shall occur, then the holder of this Instrument Security shall have the right, at such holder's option, to require the Company to repurchase, and upon the exercise of such right the Company shall repurchase, all this Security, or part any portion of this Instrument (as provided hereinbelow) on the date principal amount hereof that is equal to $1,000 or any integral multiple thereof. Upon the exercise of such repurchase right pursuant to Section 3(b), the repurchase shall take place (the "Repurchase Date") (x) on the date that is 20 Business five Trading Days (or such longer period as required by applicable law) after the date on which the Company gives notice holder of such this Security delivers a Repurchase Notice if delivered in connection with a Change of Control to in Control, and (y) on the date that is five Trading Days after the date on which the holder of this InstrumentSecurity delivers a Repurchase Notice in the case of the occurrence of any Repurchase Event; provided that any portion of the principal amount of this Security which has been made available to the Company shall be due within 90 days after the occurrence of an event described in clause (B) or (C) of the definition of Repurchase Event, and in each case at a purchase price equal to the Repurchase Price (as hereinafter defined). The Company agrees to give the holder of this Instrument Security notice, in the manner provided in Section 8(c9(b), of any Change in ControlControl or any Repurchase Event, promptly and in any event within three (3) Business two Trading Days after of the occurrence thereof; provided that the failure of the Company to give such notice shall not effect the holder's repurchase right under this Section 3.
(b) To exercise a repurchase right, the holder shall deliver to the Company on or before the 5th Business Day prior to the Repurchase DateCompany, together with this InstrumentSecurity, written notice of the holder's exercise of such rightright (a "Repurchase Notice"), which notice shall set forth the name of the holder, the principal amount of this Instrument Security to be repurchased (and, if this Instrument Security is to be repurchased in part, the portion of the principal amount thereof to be repurchasedrepurchased and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made thereby. The holder of this Security may deliver a Repurchase Notice at any time after the occurrence of a Change in Control or Repurchase Event. Such written notice shall be irrevocable, except that the right of the holder to convert this Instrument Security (or the portion hereof with respect to which the repurchase right is being exercised) shall continue until the close of business on the Business Trading Day prior to the Repurchase Date.
(c) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the holder the Repurchase Price in cash on or prior to the Repurchase Date in the manner set forth in the introductory paragraph to this InstrumentDate.
(d) If this Instrument Security (or portion thereof) is surrendered for repurchase and is not so paid on the Repurchase Date, the principal amount of this Security (or such portion hereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the Repurchase Date at the rate of 16% per annum, payable in cash, and shall remain convertible into Common Stock until the principal of this Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(e) If this Security is to be repurchased only in part, it shall be surrendered to the Company at the Designated Office (with, if the Company so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company, Company duly executed by by, the holder hereofhereof or his attorney duly authorized in writing), and the Company shall execute and deliver make available for delivery to the holder, holder without service charge, a new Instrument Security or Securities, containing identical terms and conditions identical to those contained herein and conditions, each in a an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of this Instrumentthe Security so surrendered.
(ef) For purposes of this Section 73:
(1i) the term "beneficial owner" shall be determined in accordance with Rule 13d-3 promulgated by the Securities and Exchange Commission pursuant to the Securities Exchange ActAct of 1934;
(2ii) a "Change in Control" shall be deemed to have occurred at the time, after the original issuance of this InstrumentSecurity, of:
(i1) the acquisition by any Person (including, for purposes of this Section 7, any group of two or more persons or entities acting together as contemplated by Section 14(d) of the Exchange Act) of beneficial ownership, directly or indirectly, through a purchase, merger or other acquisition transaction or series of transactions, of shares of capital stock of the Company or the Parent entitling such Person to exercise 50% or more of the total voting power of all shares of capital stock of the Company or the Parent entitled to vote generally in the elections of directors (any shares of voting stock of which such Person is the beneficial owner that are not then outstanding being deemed outstanding for purposes of calculating such percentage) other than any such acquisition by the Company or the Parent or any employee benefit plan of the Company or the ParentCompany; or
(ii2) any consolidation or merger of the Company or the Parent with or into, any other Person, any merger of another Person with or into the Company or the ParentCompany, or any conveyance, transfer, sale, lease or other disposition of all or substantially all of the assets of the Company or the Parent to another Person (other than (a) any such transaction pursuant to which holders of capital stock of the Company (or if applicable, of the Parent) Common Stock immediately prior to such transaction have the entitlement to exercise, directly or indirectly, 50% or more of the total voting power of all shares of capital stock entitled to vote generally in the election of directors of the continuing or surviving Person immediately after such transaction and (b) any merger (x) which does not result in any reclassification, conversion, exchange or cancellation of outstanding Common Stock or (y) which is effected solely to change the jurisdiction of incorporation of the Company or the Parent and results in a reclassification, conversion or exchange of outstanding Common Stock into solely shares of common stock);
(iii) the "current market price" of a share of Common Stock shall be the Closing Price of the Common Stock on the Trading Day immediately preceding the Repurchase Date; and
Appears in 1 contract
Right to Require Repurchase. (a) In the event that a Change in Control (as hereinafter defined) shall occur, then the holder of this Instrument Security shall have the right, at such holder's ’s option, to require the Company to repurchase, and upon the exercise of such right the Company shall repurchase, all this Security, or part any portion of this Instrument (as provided hereinbelow) the principal amount hereof that is equal to $1,000 or any integral multiple thereof, on the date (the "“Repurchase Date"”) that is 20 Business thirty (30) Trading Days (or such longer period as required by applicable law) after the date on which the Company gives notice of such Change of Control to the holder of this InstrumentSecurity, at a purchase price equal to the Repurchase Price (as hereinafter defined). The Company agrees to give the holder of this Instrument Security notice, in the manner provided in Section 8(c8(b), of any Change in Control, promptly and in any event within three five (35) Business Trading Days after of the occurrence thereof.
(b) To exercise a repurchase right, the holder shall deliver to the Company on or before the 5th third (3rd) Business Day prior to the Repurchase Date, together with this InstrumentSecurity, written notice of the holder's ’s exercise of such right, which notice shall set forth the name of the holder, the principal amount of this Instrument Security to be repurchased (and, if this Instrument Security is to be repurchased in part, the portion of the principal amount thereof to be repurchased) and a statement that an election to exercise the repurchase right is being made thereby. Such written notice shall be irrevocable, except that the right of the holder to convert this Instrument Security (or the portion hereof with respect to which the repurchase right is being exercised) shall continue until the close of business on the Business Trading Day prior to the Repurchase Date.
(c) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the holder the Repurchase Price in cash on the Repurchase Date in the manner set forth in the introductory paragraph to this InstrumentSecurity.
(d) If this Instrument Security is to be repurchased only in part, it shall be surrendered to the Company at the Designated Office (with, if the Company so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company, Company duly executed by by, the holder hereofhereof or his attorney duly authorized in writing), and the Company shall execute and deliver make available for delivery to the holder, holder without service charge, a new Instrument Security or Securities, containing identical terms and conditions identical to those contained herein and conditions, each in a an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of this Instrumentthe Security so surrendered.
(e) For purposes of this Section 72:
(1) the term "“beneficial owner" ” shall be determined in accordance with Rule 13d-3 promulgated by the Securities and Exchange Commission pursuant to the Exchange ActExchange;
(2) a "“Change in Control" ” shall be deemed to have occurred at the time, after the original issuance of this InstrumentSecurity, of:
(i) the acquisition by any Person (including, for purposes of this Section 7, any group of two or more persons or entities acting together as contemplated by Section 14(d) of the Exchange Act) of beneficial ownership, directly or indirectly, through a purchase, merger or other acquisition transaction or series of transactions, of shares of capital stock of the Company or the Parent entitling such Person to exercise 50% or more of the total voting power of all shares of capital stock of the Company or the Parent entitled to vote generally in the elections of directors (any shares of voting stock of which such Person is the beneficial owner that are not then outstanding being deemed outstanding for purposes of calculating such percentage) other than any such acquisition by the Company or the Parent or any employee benefit plan of the Company or the ParentCompany; or
(ii) any consolidation or merger of the Company or the Parent with or into, any other Person, any merger of another Person with or into the Company or the ParentCompany, or any conveyance, transfer, sale, lease or other disposition of all or substantially all of the assets of the Company or the Parent to another Person (other than (a) any such transaction pursuant to which holders of capital stock of the Company (or if applicable, of the Parent) Common Stock immediately prior to such transaction have the entitlement to exercise, directly or indirectly, 50% or more of the total voting power of all shares of capital stock entitled to vote generally in the election of directors of the continuing or surviving Person immediately after such transaction and (b) any merger (x) which does not result in any reclassification, conversion, exchange or cancellation of outstanding Common Stock or (y) which is effected solely to change the jurisdiction of incorporation of the Company or the Parent and results in a reclassification, conversion or exchange of outstanding Common Stock into solely shares of common stock);; or
(iii) the occupation of a majority of the seats (other than vacant seats) on the board of directors of the Company by Persons who were neither (i) nominated by the board of directors of the Company nor (ii) appointed by directors so nominated. However, a Change in Control will not be deemed to have occurred if (i) the Closing Price per share of the Company’s Common Stock for any five (5) Trading Days within the period of ten (10) consecutive Trading Days ending immediately after the later of the Change in Control or the public announcement of the Change in Control, in the case of a Change in Control relating to an acquisition of capital stock, or the period of ten (10) consecutive Trading Days ending immediately before the Change in Control, in the case of Change in Control relating to a merger, consolidation or asset sale, equals or exceeds 105% of the conversion price of the Securities (for purposes hereof the Conversion Price being equal to $1,000 divided by the Conversion Rate then in effect); or (11) 95% of the consideration (excluding cash payments for fractional shares and cash payments made pursuant to dissenters’ appraisal rights) in a merger or consolidation otherwise constituting the Change of Control described in clause (ii) above consists of shares of common stock traded or to be traded immediately following such Change of Control on a national securities exchange or quoted on the Nasdaq National Market and as a result of such transaction or transactions this Security becomes convertible solely into such common stock.
(3) the “current market price” of a share of Common Stock shall be the Closing Price of the Common Stock on the Trading Day immediately preceding the Repurchase Date; and
Appears in 1 contract
Right to Require Repurchase. (a) In the event that a Change in Control (as hereinafter defined) shall occur, then the holder of this Instrument each Holder shall have the right, at such holderthe Holder's option, but subject to the provisions of Section 12.2, to require the Company to repurchase, and upon the exercise of ------------ such right the Company shall repurchase, all of such Holder's Securities not theretofore called for redemption, or part any portion of this Instrument (as provided hereinbelow) the principal amount thereof that is equal to U.S.$1,000 or any greater integral multiple of U.S.$1,000, on the date (the "Repurchase Date") that is 20 Business Days fixed by the Company at --------------- a cash purchase price equal to 100% of the principal amount of the Securities to be repurchased plus interest accrued to the Repurchase Date (the "Repurchase ---------- Price"); provided, however, that installments of interest on Securities whose ----- Stated Maturity is on or prior to the Repurchase Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such on the relevant Record Date according to their terms and the provisions of Section 2.8. The Repurchase Date will be determined by the Company in the ----------- following manner: (i) the Company will give notice of the Change in Control as contemplated in Section 12.3(a); (ii) each Holder electing to exercise the repurchase right must deliver, on or before the thirtieth (30th) day (or such longer greater period as may be required by applicable law) after the date on which of the Company gives Company's notice provided in provision (i) above: (A) irrevocable written notice to the trustee of such Change Holder's exercise of Control to the holder of this Instrument, at a purchase price equal to the Repurchase Price (as hereinafter defined). The Company agrees to give the holder of this Instrument notice, in the manner provided in Section 8(c), of any Change in Control, promptly and in any event within three (3) Business Days after the occurrence thereof.
(b) To exercise a its repurchase right, and (B) the holder shall deliver to the Company on or before the 5th Business Day prior to the Repurchase Date, together with this Instrument, written notice of the holder's exercise of such right, which notice shall set forth the name of the holder, the principal amount of this Instrument to be repurchased (and, if this Instrument is to be repurchased in part, the portion of the principal amount thereof to be repurchased) and a statement that an election to exercise the repurchase right is being made thereby. Such written notice shall be irrevocable, except that the right of the holder to convert this Instrument (or the portion hereof Securities with respect to which the such repurchase right is being exercised; and (iii) the Company will make the repurchase on a date that is no later than 45 days after the Holder has delivered the notice provided in proviso (ii) above. Such right to require the repurchase of the Securities shall not continue until after a discharge of the close Company from its obligations with respect to the Securities in accordance with Article Three unless a Change in Control shall have occurred ------------- prior to such discharge. At the option of business on the Business Day prior Company, the Repurchase Price may be paid in cash or, subject to the fulfillment by the Company of the conditions set forth Section 12.2, by delivery of shares of Common Stock or in a ------------ combination of cash and Common Stock having a fair market value equal to the Repurchase Date.
Price. Whenever in this Indenture (cincluding Sections 2.2, 4.1(a) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the holder the Repurchase Price in cash on the Repurchase Date in the manner set forth in the introductory paragraph to this Instrument.
(d) If this Instrument is to be repurchased only in part, it shall be surrendered to the Company at the Designated Office (with, if the Company so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company, duly executed by the holder hereof), and the Company shall execute and deliver to the holder, without service charge, a new Instrument containing terms and conditions identical to those contained herein and in a principal amount equal to and in exchange for the unrepurchased portion of the principal of this Instrument.
(e) For purposes of this Section 7:
(1) the term "beneficial owner" shall be determined in accordance with Rule 13d-3 promulgated by the Securities and Exchange Commission pursuant to the Exchange Act;
(2) a "Change in Control" shall be deemed to have occurred at the time, after the original issuance of this Instrument, of:
(i) the acquisition by any Person (including, for purposes of this Section 7, any group of two or more persons or entities acting together as contemplated by Section 14(d) of the Exchange Act) of beneficial ownership, directly or indirectly, through a purchase, merger or other acquisition transaction or series of transactions, of shares of capital stock of the Company or the Parent entitling such Person to exercise 50% or more of the total voting power of all shares of capital stock of the Company or the Parent entitled to vote generally in the elections of directors (any shares of voting stock of which such Person is the beneficial owner that are not then outstanding being deemed outstanding for purposes of calculating such percentage) other than any such acquisition by the Company or the Parent or any employee benefit plan of the Company or the Parent; or
(ii) any consolidation or merger of the Company or the Parent with or into, any other Person, any merger of another Person with or into the Company or the Parent, or any conveyance, transfer, sale, lease or other disposition of all or substantially all of the assets of the Company or the Parent to another Person (other than (a) any such transaction pursuant to which holders of capital stock of the Company (or if applicable, of the Parent) immediately prior to such transaction have the entitlement to exercise, directly or indirectly, 50% or more of the total voting power of all shares of capital stock entitled to vote generally in the election of directors of the continuing or surviving Person immediately after such transaction and (b) any merger (x) which does not result in any reclassification, conversion, exchange or cancellation of outstanding Common Stock or (y) which is effected solely to change the jurisdiction of incorporation of the Company or the Parent and results in a reclassification, conversion or exchange of outstanding Common Stock into solely shares of common stock);--------------------
Appears in 1 contract
Sources: Indenture (Cell Therapeutics Inc)
Right to Require Repurchase. (a) In the event that a Change in Control (as hereinafter defined) shall occur, then the holder of this Instrument each Holder shall have the right, at such holderthe Holder's option, to require the Company to repurchase, and upon the exercise of such right the Company shall repurchase, all of such Holder's Notes, or part any portion of this Instrument (as provided hereinbelow) the principal amount thereof that is an integral multiple of $1,000, on the date (the "Repurchase Date") that is 20 Business Days (or such longer period as required by applicable law) 45 days after the date on which of the Company gives notice of such Change of Control to the holder of this Instrument, Notice (as defined in Section 14.2) at a purchase price equal to 100% of the principal amount of the Notes to be repurchased (the "Repurchase Price (as hereinafter defined). The Company agrees to give the holder of this Instrument notice, in the manner provided in Section 8(cPrice"), of any Change together in Control, promptly and in any event within three (3) Business Days after the occurrence thereof.
(b) To exercise a repurchase right, the holder shall deliver to the Company on or before the 5th Business Day prior each case with accrued interest to the Repurchase Date, together with this Instrument, written notice . Such right to require the repurchase of the holder's exercise of such right, which notice Notes shall set forth the name not continue after a discharge of the holder, the principal amount of this Instrument to be repurchased (and, if this Instrument is to be repurchased in part, the portion of the principal amount thereof to be repurchased) and a statement that an election to exercise the repurchase right is being made thereby. Such written notice shall be irrevocable, except that the right of the holder to convert this Instrument (or the portion hereof Company from its obligations with respect to which the repurchase right is being exercised) Notes in accordance with Article Four, unless a Change in Control shall continue until have occurred prior to such discharge. At the close option of business the Company, the Repurchase Price may be paid, subject to the fulfillment by the Company of the conditions set forth below, by delivery of shares of Common Stock. However, the failure of the Company to pay the Repurchase Price on the Business Day prior Repurchase Date either in cash or by delivery of shares of Common Stock shall constitute an Event of Default for purposes of Section 5.1(a) hereof notwithstanding the Company's inability to comply with provisions of or satisfy any conditions set forth in this Section 14.1. Whenever in this Indenture (including Sections 2.2, 3.1, 5.1(b) and 5.8) there is a reference, in any context, to the principal of any Note as of any time, such reference shall be deemed to include reference to the Repurchase Date.
(c) In the event a repurchase right shall be exercised Price payable in accordance with the terms hereof, the Company shall pay or cause to be paid respect of such Note to the holder extent that such Repurchase Price is, was or would be so payable at such time, and express mention of the Repurchase Price in cash on any provision of this Indenture shall not be construed as excluding the Repurchase Date Price in the manner set forth in the introductory paragraph to those provisions of this Instrument.
(d) If this Instrument Indenture when such express mention is to be repurchased only in part, it shall be surrendered to the Company at the Designated Office (with, if the Company so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company, duly executed by the holder hereof), and the Company shall execute and deliver to the holder, without service charge, a new Instrument containing terms and conditions identical to those contained herein and in a principal amount equal to and in exchange not made; provided that for the unrepurchased portion of the principal of this Instrument.
(e) For purposes of this Section 7:
(1) the term "beneficial owner" shall be determined in accordance with Rule 13d-3 promulgated by the Securities and Exchange Commission pursuant to the Exchange Act;
(2) a "Change in Control" Article Twelve such reference shall be deemed to have occurred at include reference to the time, after Repurchase Price only to the original issuance of this Instrument, of:
(i) extent the acquisition by any Person (including, for purposes of this Section 7, any group of two or more persons or entities acting together as contemplated by Section 14(d) of the Exchange Act) of beneficial ownership, directly or indirectly, through a purchase, merger or other acquisition transaction or series of transactions, of shares of capital stock of the Company or the Parent entitling such Person to exercise 50% or more of the total voting power of all shares of capital stock of the Company or the Parent entitled to vote generally Repurchase Price is payable in the elections of directors (any shares of voting stock of which such Person is the beneficial owner that are not then outstanding being deemed outstanding for purposes of calculating such percentage) other than any such acquisition by the Company or the Parent or any employee benefit plan of the Company or the Parent; or
(ii) any consolidation or merger of the Company or the Parent with or into, any other Person, any merger of another Person with or into the Company or the Parent, or any conveyance, transfer, sale, lease or other disposition of all or substantially all of the assets of the Company or the Parent to another Person (other than (a) any such transaction pursuant to which holders of capital stock of the Company (or if applicable, of the Parent) immediately prior to such transaction have the entitlement to exercise, directly or indirectly, 50% or more of the total voting power of all shares of capital stock entitled to vote generally in the election of directors of the continuing or surviving Person immediately after such transaction and (b) any merger (x) which does not result in any reclassification, conversion, exchange or cancellation of outstanding Common Stock or (y) which is effected solely to change the jurisdiction of incorporation of the Company or the Parent and results in a reclassification, conversion or exchange of outstanding Common Stock into solely shares of common stock);cash.
Appears in 1 contract
Sources: Indenture (Signature Resorts Inc)
Right to Require Repurchase. (a) In the event that there shall occur --------------------------- a Change in Control (as hereinafter defined) shall occurDesignated Event with respect to the Company, then the holder of this Instrument each Securityholder shall have the right, at such holderSecurityholder's option, but subject to the provisions of Article 11 of the Indenture, to require the Company to repurchasepurchase, and upon the exercise of such right the Company shall repurchasepurchase, all or any part of this Instrument (as provided hereinbelow) on such Securityholder's Securities which is $1,000 or an integral multiple thereof promptly following the date (the "Repurchase Date") that is 20 Business Days (or such longer period as required by applicable law) 30 days after the date on which of the Company gives notice Notice, at 100% of such Change of Control the principal amount, together with accrued and unpaid interest to the holder of this Instrument, at a purchase price equal to the Repurchase Price (as hereinafter defined)date fixed for repurchase. The Company agrees to give the holder of this Instrument notice, in the manner provided in Section 8(c), of any Change in Control, promptly and in any event within three (3) Business Days after the occurrence thereof.
(b) To exercise a repurchase right, the holder a Securityholder shall deliver to the Company (or an agent designated by the Company for such purpose in the Company Notice), on or before the 5th Business Day prior to 30th day after the Repurchase Datedate of the Company Notice, together with this Instrument, (i) written notice of the holderSecurityholder's exercise of such right, which notice shall set forth the name of the holderSecurityholder, the principal amount of this Instrument to be repurchased the Security or Securities (and, if this Instrument is to be repurchased in part, the or portion of the principal amount thereof a Security) to be repurchased) , and a statement that an election to exercise the repurchase right is being made thereby. Such written notice shall be irrevocable, except that and (ii) the right of the holder to convert this Instrument (Security or the portion hereof Securities with respect to which the repurchase right is being exercised) , duly endorsed for transfer to the Company. If the Repurchase Date falls between any record date for the payment of interest on the Securities and the next succeeding interest payment date, Securities to be repurchased must be accompanied by payment of an amount equal to the interest thereon which the registered holder thereof is to receive on such interest payment date. Any Securityholder that has delivered to the Trustee its written notice exercising its right to require the Company to repurchase its Securities upon the occurrence of a Designated Event shall continue until have the right to withdraw such notice of withdrawal to the Trustee prior to the close of business on such date. A Security in respect of which a Securityholder is exercising its option to require repurchase upon the Business Day prior to occurrence of a Designated Event may be converted into Common Stock in accordance with Article 10 of the Repurchase Date.
(c) In the event a repurchase right shall be exercised Indenture only if such Securityholder withdraws its notice in accordance with the terms hereof, the Company shall pay or cause to be paid to the holder the Repurchase Price in cash on the Repurchase Date in the manner set forth in the introductory paragraph to this Instrumentpreceding sentence.
(d) If this Instrument is to be repurchased only in part, it shall be surrendered to the Company at the Designated Office (with, if the Company so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company, duly executed by the holder hereof), and the Company shall execute and deliver to the holder, without service charge, a new Instrument containing terms and conditions identical to those contained herein and in a principal amount equal to and in exchange for the unrepurchased portion of the principal of this Instrument.
(e) For purposes of this Section 7:
(1) the term "beneficial owner" shall be determined in accordance with Rule 13d-3 promulgated by the Securities and Exchange Commission pursuant to the Exchange Act;
(2) a "Change in Control" shall be deemed to have occurred at the time, after the original issuance of this Instrument, of:
(i) the acquisition by any Person (including, for purposes of this Section 7, any group of two or more persons or entities acting together as contemplated by Section 14(d) of the Exchange Act) of beneficial ownership, directly or indirectly, through a purchase, merger or other acquisition transaction or series of transactions, of shares of capital stock of the Company or the Parent entitling such Person to exercise 50% or more of the total voting power of all shares of capital stock of the Company or the Parent entitled to vote generally in the elections of directors (any shares of voting stock of which such Person is the beneficial owner that are not then outstanding being deemed outstanding for purposes of calculating such percentage) other than any such acquisition by the Company or the Parent or any employee benefit plan of the Company or the Parent; or
(ii) any consolidation or merger of the Company or the Parent with or into, any other Person, any merger of another Person with or into the Company or the Parent, or any conveyance, transfer, sale, lease or other disposition of all or substantially all of the assets of the Company or the Parent to another Person (other than (a) any such transaction pursuant to which holders of capital stock of the Company (or if applicable, of the Parent) immediately prior to such transaction have the entitlement to exercise, directly or indirectly, 50% or more of the total voting power of all shares of capital stock entitled to vote generally in the election of directors of the continuing or surviving Person immediately after such transaction and (b) any merger (x) which does not result in any reclassification, conversion, exchange or cancellation of outstanding Common Stock or (y) which is effected solely to change the jurisdiction of incorporation of the Company or the Parent and results in a reclassification, conversion or exchange of outstanding Common Stock into solely shares of common stock);
Appears in 1 contract
Sources: Indenture (Synetic Inc)
Right to Require Repurchase. (a) In the event that a Change in Control (as hereinafter defined) shall occur, then the holder of this Instrument Security shall have the right, at such holder's ’s option, to require the Company to repurchase, and upon the exercise of such right the Company shall repurchase, all this Security, or part any portion of this Instrument (as provided hereinbelow) the principal amount hereof that is equal to $1,000 or any integral multiple thereof, on the date (the "“Repurchase Date"”) that is 20 Business 30 Trading Days (or such longer period as required by applicable law) after the date on which the Company gives notice of such Change of Control to the holder of this InstrumentSecurity, at a purchase price equal to the Repurchase Price (as hereinafter defined). The Company agrees to give the holder of this Instrument Security notice, in the manner provided in Section 8(c9(b), of any Change in Control, promptly and in any event within three five (35) Business Trading Days after of the occurrence thereof.
(b) To exercise a repurchase right, the holder shall deliver to the Company on or before the 5th Business Day day prior to the Repurchase Date, together with this InstrumentSecurity, written notice of the holder's ’s exercise of such right, which notice shall set forth the name of the holder, the principal amount of this Instrument Security to be repurchased (and, if this Instrument Security is to be repurchased in part, the portion of the principal amount thereof to be repurchased) and a statement that an election to exercise the repurchase right is being made thereby. Such written notice shall be irrevocable, except that the right of the holder to convert this Instrument Security (or the portion hereof with respect to which the repurchase right is being exercised) shall continue until the close of business on the Business Trading Day prior to the Repurchase Date.
(c) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the holder the Repurchase Price in cash on the Repurchase Date in the manner set forth in the introductory paragraph to this InstrumentSecurity.
(d) If this Instrument Security is to be repurchased only in part, it shall be surrendered to the Company at the Designated Office (with, if the Company so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company, Company duly executed by by, the holder hereofhereof or his attorney duly authorized in writing), and the Company shall execute and deliver make available for delivery to the holder, holder without service charge, a new Instrument Security or Securities, containing identical terms and conditions identical to those contained herein and conditions, each in a an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of this Instrumentthe Security so surrendered.
(e) For purposes of this Section 73:
(1) the term "“beneficial owner" ” shall be determined in accordance with Rule 13d-3 promulgated by the Securities and Exchange Commission pursuant to the Exchange Act;
(2) a "“Change in Control" ” shall be deemed to have occurred at the time, after the original issuance of this InstrumentSecurity, of:
(i) the acquisition by any Person (including, for purposes of this Section 7, any group of two or more persons or entities acting together as contemplated by Section 14(d) of the Exchange Act) of beneficial ownership, directly or indirectly, through a purchase, merger or other acquisition transaction or series of transactions, of shares of capital stock of the Company or the Parent entitling such Person to exercise 50% or more of the total voting power of all shares of capital stock of the Company or the Parent entitled to vote generally in the elections of directors (any shares of voting stock of which such Person is the beneficial owner that are not then outstanding being deemed outstanding for purposes of calculating such percentage) other than any such acquisition by the Company or the Parent or any employee benefit plan of the Company or the ParentCompany; or
(ii) any consolidation or merger of the Company or the Parent with or into, any other Person, any merger of another Person with or into the Company or the ParentCompany, or any conveyance, transfer, sale, lease or other disposition of all or substantially all of the assets of the Company or the Parent to another Person (other than (a) any such transaction pursuant to which holders of capital stock of the Company (or if applicable, of the Parent) Common Stock immediately prior to such transaction have the entitlement to exercise, directly or indirectly, 50% or more of the total voting power of all shares of capital stock entitled to vote generally in the election of directors of the continuing or surviving Person immediately after such transaction and (b) any merger (x) which does not result in any reclassification, conversion, exchange or cancellation of outstanding Common Stock or (y) which is effected solely to change the jurisdiction of incorporation of the Company or the Parent and results in a reclassification, conversion or exchange of outstanding Common Stock into solely shares of common stock);; However, a Change in Control will not be deemed to have occurred if (i) the Closing Price per share of the Company’s Common Stock for any five (5) Trading Days within the period of ten (10) consecutive Trading Days ending immediately after the later of the Change in Control or the public announcement of the Change in Control, in the case of a Change in Control relating to an acquisition of capital stock, or the period of ten (10) consecutive Trading Days ending immediately before the Change in Control, in the case of Change in Control relating to a merger, consolidation or asset sale, equals or exceeds 105% of the Conversion Price of this Security; or (ii) 95% of the consideration (excluding cash payments for fractional shares and cash payments made pursuant to dissenters’ appraisal rights) in a merger or consolidation otherwise constituting the Change of Control described in clause (ii) above consists of shares of common stock traded or to be traded immediately following such Change of Control on a national securities exchange or quoted on the Nasdaq National Market and as a result of such transaction or transactions this Security becomes convertible solely into such common stock.
(iii) the “current market price” of a share of Common Stock shall be the Closing Price of the Common Stock on the Trading Day immediately preceding the Repurchase Date; and
Appears in 1 contract
Right to Require Repurchase. (a) In the event that a Change in Control or a Repurchase Event (each as hereinafter defined) shall occur, then the holder of this Instrument Security shall have the right, at such holder's option, to require the Company to repurchase, and upon the exercise of such right the Company shall repurchase, all this Security, or part any portion of this Instrument (as provided hereinbelow) on the date principal amount hereof that is equal to $1,000 or any integral multiple thereof. Upon the exercise of such repurchase right pursuant to Section 3(b), the repurchase shall take place (the "Repurchase Date") (w) on the date that is 20 Business five Trading Days (or such longer period as required by applicable law) after the date on which the Company gives notice holder of such this Security delivers a Repurchase Notice if delivered in connection with a Change of Control to in Control, (x) on the date that is five Trading Days after the date on which the holder of this InstrumentSecurity delivers a Repurchase Notice in the case of a the occurrence of an event described in clause (A) or (D) of the definition of Repurchase Event, (y) within 90 days after the occurrence of an event described in clause (B) of the definition of Repurchase Event, and (z) on the date that is 18 months after the date of this Security in the case of the occurrence of a Repurchase Event described in clause (C) of the definition of Repurchase Event, and in each case at a purchase price equal to the Repurchase Price (as hereinafter defined). The Company agrees to give the holder of this Instrument Security notice, in the manner provided in Section 8(c9(b), of any Change in ControlControl or any Repurchase Event, promptly and in any event within three (3) Business two Trading Days after of the occurrence thereof; provided that the failure of the Company to give such notice shall not effect the holder's repurchase right under this Section 3.
(b) To exercise a repurchase right, the holder shall deliver to the Company on or before the 5th Business Day prior to the Repurchase DateCompany, together with this InstrumentSecurity, written notice of the holder's exercise of such rightright (a "Repurchase Notice"), which notice shall set forth the name of the holder, the principal amount of this Instrument Security to be repurchased (and, if this Instrument Security is to be repurchased in part, the portion of the principal amount thereof to be repurchasedrepurchased and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made thereby. The holder of this Security may deliver a Repurchase Notice at any time after the occurrence of a Change in Control or Repurchase Event. Such written notice shall be irrevocable, except that the right of the holder to convert this Instrument Security (or the portion hereof with respect to which the repurchase right is being exercised) shall continue until the close of business on the Business Trading Day prior to the Repurchase Date.
(c) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the holder the Repurchase Price in cash on or prior to the Repurchase Date in the manner set forth in the introductory paragraph to this InstrumentDate.
(d) If this Instrument Security (or portion thereof) is surrendered for repurchase and is not so paid on the Repurchase Date, the principal amount of this Security (or such portion hereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the Repurchase Date at the rate of 16% per annum, payable in cash, and shall remain convertible into Common Stock until the principal of this Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(e) If this Security is to be repurchased only in part, it shall be surrendered to the Company at the Designated Office (with, if the Company so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company, Company duly executed by by, the holder hereofhereof or his attorney duly authorized in writing), and the Company shall execute and deliver make available for delivery to the holder, holder without service charge, a new Instrument Security or Securities, containing identical terms and conditions identical to those contained herein and conditions, each in a an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of this Instrumentthe Security so surrendered.
(ef) For purposes of this Section 73:
(1i) the term "beneficial owner" shall be determined in accordance with Rule 13d-3 promulgated by the Securities and Exchange Commission pursuant to the Securities Exchange ActAct of 1934;
(2ii) a "Change in Control" shall be deemed to have occurred at the time, after the original issuance of this InstrumentSecurity, of:
(i1) the acquisition by any Person (including, for purposes of this Section 7, any group of two or more persons or entities acting together as contemplated by Section 14(d) of the Exchange Act) of beneficial ownership, directly or indirectly, through a purchase, merger or other acquisition transaction or series of transactions, of shares of capital stock of the Company or the Parent entitling such Person to exercise 50% or more of the total voting power of all shares of capital stock of the Company or the Parent entitled to vote generally in the elections of directors (any shares of voting stock of which such Person is the beneficial owner that are not then outstanding being deemed outstanding for purposes of calculating such percentage) other than any such acquisition by the Company or the Parent or any employee benefit plan of the Company or the ParentCompany; or
(ii2) any consolidation or merger of the Company or the Parent with or into, any other Person, any merger of another Person with or into the Company or the ParentCompany, or any conveyance, transfer, sale, lease or other disposition of all or substantially all of the assets of the Company or the Parent to another Person (other than (a) any such transaction pursuant to which holders of capital stock of the Company (or if applicable, of the Parent) Common Stock immediately prior to such transaction have the entitlement to exercise, directly or indirectly, 50% or more of the total voting power of all shares of capital stock entitled to vote generally in the election of directors of the continuing or surviving Person immediately after such transaction and (b) any merger (x) which does not result in any reclassification, conversion, exchange or cancellation of outstanding Common Stock or (y) which is effected solely to change the jurisdiction of incorporation of the Company or the Parent and results in a reclassification, conversion or exchange of outstanding Common Stock into solely shares of common stock);
(iii) the "current market price" of a share of Common Stock shall be the Closing Price of the Common Stock on the Trading Day immediately preceding the Repurchase Date; and
Appears in 1 contract
Right to Require Repurchase. (a) In the event that a Change in Control (as hereinafter defined) shall occur, then the holder of this Instrument Security shall have the right, at such holder's ’s option, to require the Company to repurchase, and upon the exercise of such right the Company shall repurchase, all this Security, or part any portion of this Instrument (as provided hereinbelow) the principal amount hereof that is equal to $1,000 or any integral multiple thereof, on the date (the "“Repurchase Date"”) that is 20 Business thirty (30) Trading Days (or such longer period as required by applicable law) after the date on which the Company gives notice of such Change of Control to the holder of this InstrumentSecurity, at a purchase price equal to the Repurchase Price (as hereinafter defined). The Company agrees to give the holder of this Instrument Security notice, in the manner provided in Section 8(c8(b), of any Change in Control, promptly and in any event within three five (35) Business Trading Days after of the occurrence thereof.
(b) To exercise a repurchase right, the holder shall deliver to the Company on or before the 5th third (3rd) Business Day prior to the Repurchase Date, together with this InstrumentSecurity, written notice of the holder's ’s exercise of such right, which notice shall set forth the name of the holder, the principal amount of this Instrument Security to be repurchased (and, if this Instrument Security is to be repurchased in part, the portion of the principal amount thereof to be repurchased) and a statement that an election to exercise the repurchase right is being made thereby. Such written notice shall be irrevocable, except that the right of the holder to convert this Instrument Security (or the portion hereof with respect to which the repurchase right is being exercised) shall continue until the close of business on the Business Trading Day prior to the Repurchase Date.
(c) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the holder the Repurchase Price in cash on the Repurchase Date in the manner set forth in the introductory paragraph to this InstrumentSecurity.
(d) If this Instrument Security is to be repurchased only in part, it shall be surrendered to the Company at the Designated Office (with, if the Company so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company, Company duly executed by by, the holder hereofhereof or his attorney duly authorized in writing), and the Company shall execute and deliver make available for delivery to the holder, holder without service charge, a new Instrument Security or Securities, containing identical terms and conditions identical to those contained herein and conditions, each in a an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of this Instrumentthe Security so surrendered.
(e) For purposes of this Section 72:
(1) the term "“beneficial owner" ” shall be determined in accordance with Rule 13d-3 promulgated by the Securities and Exchange Commission pursuant to the Exchange ActExchange;
(2) a "“Change in Control" ” shall be deemed to have occurred at the time, after the original issuance of this InstrumentSecurity, of:
(i) the acquisition by any Person (including, for purposes of this Section 7, any group of two or more persons or entities acting together as contemplated by Section 14(d) of the Exchange Act) of beneficial ownership, directly or indirectly, through a purchase, merger or other acquisition transaction or series of transactions, of shares of capital stock of the Company or the Parent entitling such Person to exercise 50% or more of the total voting power of all shares of capital stock of the Company or the Parent entitled to vote generally in the elections of directors (any shares of voting stock of which such Person is the beneficial owner that are not then outstanding being deemed outstanding for purposes of calculating such percentage) other than any such acquisition by the Company or the Parent or any employee benefit plan of the Company or the ParentCompany; or
(ii) any consolidation or merger of the Company or the Parent with or into, any other Person, any merger of another Person with or into the Company or the ParentCompany, or any conveyance, transfer, sale, lease or other disposition of all or substantially all of the assets of the Company or the Parent to another Person (other than (a) any such transaction pursuant to which holders of capital stock of the Company (or if applicable, of the Parent) Common Stock immediately prior to such transaction have the entitlement to exercise, directly or indirectly, 50% or more of the total voting power of all shares of capital stock entitled to vote generally in the election of directors of the continuing or surviving Person immediately after such transaction and (b) any merger (x) which does not result in any reclassification, conversion, exchange or cancellation of outstanding Common Stock or (y) which is effected solely to change the jurisdiction of incorporation of the Company or the Parent and results in a reclassification, conversion or exchange of outstanding Common Stock into solely shares of common stock);; or
(iii) the occupation of a majority of the seats (other than vacant seats) on the board of directors of the Company by Persons who were neither (i) nominated by the board of directors of the Company nor (ii) appointed by directors so nominated. However, a Change in Control will not be deemed to have occurred if (i) the Closing Price per share of the Company’s Common Stock for any five (5) Trading Days within the period of ten (10) consecutive Trading Days ending immediately after the later of the Change in Control or the public announcement of the Change in Control, in the case of a Change in Control relating to an acquisition of capital stock, or the period of ten (10) consecutive Trading Days ending immediately before the Change in Control, in the case of Change in Control relating to a merger, consolidation or asset sale, equals or exceeds 105% of the conversion price of the Securities (for purposes hereof the Conversion Price being equal to $1,000 divided by the Conversion Rate then in effect); or (ii) 95% of the consideration (excluding cash payments for fractional shares and cash payments made pursuant to dissenters’ appraisal rights) in a merger or consolidation otherwise constituting the Change of Control described in clause (ii) above consists of shares of common stock traded or to be traded immediately following such Change of Control on a national securities exchange or quoted on the Nasdaq National Market and as a result of such transaction or transactions this Security becomes convertible solely into such common stock.
(3) the “current market price” of a share of Common Stock shall be the Closing Price of the Common Stock on the Trading Day immediately preceding the Repurchase Date; and
Appears in 1 contract
Right to Require Repurchase. (a) In the event that a Change in Control (as hereinafter defined) shall occur, then the The holder of this Instrument Security shall have the right, at such holder's option, to require the Company to repurchase, and upon the exercise of such right the Company shall repurchase, all or part this Security; portion of this Instrument (as provided hereinbelow) the principal amount hereof in an amount not less than $1,000,000, on the date (the "Repurchase Date") that is 20 Business is: (i) any time on or --------------- after January 15, 2005, or (ii) in the event that a Change in Control shall occur, then fifteen (15) Trading Days (or such longer period as required by applicable law) after the date on which the Company gives notice of such Change of Control to the holder of this InstrumentSecurity, at a purchase price equal to the Repurchase Price Price. Notwithstanding the foregoing, in the event the Change of Control involves a purchase of all or substantially all of the assets of the Company solely for cash, then upon the occurrence of such Change of Control, this Security shall be automatically redeemed for an amount equal to accrued and unpaid interest plus the greater of (as hereinafter defined)i) 115% of the principal amount outstanding under the Security or (ii) the fair market value of the shares of Common Stock issuable upon conversion of this Security, assuming such conversion occurred immediately prior to such Change of Control. The Company agrees to give the holder of this Instrument Security notice, in the manner provided in Section 8(c9(b), of any Change in Control, promptly and in any event within three (3) Business not more than 2 Trading Days after the occurrence thereof.
(b) To exercise a repurchase right, the holder shall deliver to the Company on or before the 5th Business Day prior to the Repurchase DateCompany, together with this InstrumentSecurity, written notice of the holder's exercise of such right, which notice shall set forth the name of the holder, the principal amount of this Instrument Security to be repurchased (and, if this Instrument Security is to be repurchased in part, the portion of the principal amount thereof to be repurchased) repurchased and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered), a statement that an election to exercise the repurchase right is being made thereby, and a statement as to whether the repurchase is pursuant to a Change of Control or not (the "Repurchase Notice"). The holder shall deliver the Repurchase Notice (i) in the ----------------- case of a repurchase upon a Change of Control, not less than 5 days prior to the Repurchase Date, or (ii) in the case of a repurchase other than upon a Change of Control, not less than thirty (30) nor more than sixty (60) days prior to the Repurchase Date. Such written notice Repurchase Notice shall be irrevocable, except that the right of the holder to convert this Instrument Security (or the portion hereof with respect to which the repurchase right is being exercised) shall continue until the close of business on the Business Trading Day prior to the Repurchase Date.
(c) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the holder the Repurchase Price in cash only on or prior to the Repurchase Date in the manner set forth in the introductory paragraph to this InstrumentDate.
(d) Without prejudice to any other rights that may be available to the holder of this Security, if this Security (or portion thereof) is surrendered for repurchase and the applicable Repurchase Price is not paid on the Repurchase Date, the principal amount of this Security (or such portion hereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the Repurchase Date at the rate of 12.0% per annum, payable in cash, and shall remain convertible into Common Stock until the principal of this Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(e) If this Instrument Security is to be repurchased only in part, it shall be surrendered to the Company at the Designated Office (with, if the Company so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company, Company duly executed by by, the holder hereofhereof or his attorney duly authorized in writing), and the Company shall execute and deliver make available for delivery to the holder, holder without service charge, a new Instrument Security or Securities, containing identical terms and conditions identical to those contained herein and conditions, each in a an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of this Instrumentthe Security so surrendered.
(ef) In the event that there shall be any conversion of this Security (including any deemed conversion) pursuant to Section 2 after the holder of this Security has delivered a Repurchase Notice to the Company, the holder shall promptly reimburse the Company for all fees, costs and expenses paid to third parties incurred by it in connection with any arrangement or facility intended to finance the Repurchase Price of the portion of this Security so converted (and such reimbursement shall be limited to those fees, costs and expenses incurred by the Company after delivery of such Repurchase Notice and attributable to financing such Repurchase Price).
(g) For purposes of this Section 73:
(1) the term "beneficial owner" shall be determined in ---------------- accordance with Rule 13d-3 promulgated by the Securities and Exchange Commission pursuant to the Securities Exchange ActAct of 1934;
(2) a "Change in Control" shall be deemed to have occurred ----------------- at the time, after the original issuance of this InstrumentSecurity, of:
(i) the acquisition by any Person (including, for purposes of this Section 7, any group of two or more persons or entities acting together as contemplated by Section 14(d) of the Exchange Act) of beneficial ownership, directly or indirectly, through a purchase, merger or other acquisition transaction or series of transactions, of shares of capital stock of the Company or the Parent entitling such Person to exercise 50% or more of the total voting power of all shares of capital stock of the Company or the Parent entitled to vote generally in the elections of directors (any shares of voting stock of which such Person is the beneficial owner that are not then outstanding being deemed outstanding for purposes of calculating such percentage) other than any such acquisition by the Company or the Parent or any employee benefit plan of the Company or the ParentCompany; or
(ii) any consolidation or merger of the Company or the Parent with or into, any other Person, any merger of another Person with or into the Company or the ParentCompany, or any conveyance, transfer, sale, lease or other disposition of all or substantially all of the assets of the Company or the Parent to another Person (other than (aA) any such transaction pursuant to which holders of capital stock of the Company (or if applicable, of the Parent) Common Stock immediately prior to such transaction have the entitlement to exercise, directly or indirectly, 50% or more of the total voting power of all shares of capital stock entitled to vote generally in the election of directors of the continuing or surviving Person immediately after such transaction and (bB) any merger (x) which does not result in any reclassification, conversion, exchange or cancellation of outstanding Common Stock or (y) which is effected solely to change the jurisdiction of incorporation of the Company or the Parent and results in a reclassification, conversion or exchange of outstanding Common Stock into solely shares of common stock);; or
(iii) any transaction or event (whether by means of an exchange offer, liquidation, tender offer, consolidation, merger, combination, reclassification, recapitalization or otherwise) in connection with which all or substantially all shares of Common Stock are exchanged for, converted into, acquired for or constitute solely the right to receive, consideration which is not all or substantially all common stock that is (a) listed on, or immediately after the transaction or event will be approved, for quotation on the Nasdaq National Market or any similar United States system of automated dissemination of quotations of securities prices; and
Appears in 1 contract
Right to Require Repurchase. (a) In the event that a Change in Control (as hereinafter defined) shall occur, then the holder of this Instrument Security shall have the right, at such holder's option, to require the Company to repurchase, and upon the exercise of such right the Company shall repurchase, all this Security, or part any portion of this Instrument (as provided hereinbelow) the principal amount hereof that is equal to $1,000 or any integral multiple thereof, on the date (the "Repurchase Date") that is 20 Business fifteen Trading Days (or such longer period as required by applicable law) after the date on which the Company gives notice of such Change of Control thereof to the holder of this InstrumentSecurity, at a purchase price equal to 100% of the principal amount of this Security to be repurchased plus interest accrued to the Repurchase Date (the "Repurchase Price"); provided, however, that installments of interest on this Security whose stated maturity is on or prior to the Repurchase Date shall be payable to the holder of this Security, or one or more predecessor Securities, registered as such on the relevant Record Date according to their terms. At the option of the Company, the Repurchase Price (may be paid in cash or, subject to the fulfillment by the Company of the conditions set forth in Section 6 and subject to the limitations set forth therein, by delivery of shares of Common Stock having a fair market value equal to the Repurchase Price as hereinafter defined)described in Section 6. The Company agrees to give the holder of this Instrument notice, in the manner provided in Section 8(c), Security notice of any Change in Control, by facsimile transmission confirmed in writing by overnight courier service, promptly and in any event within three (3) Business two Trading Days after of the occurrence thereof.
(b) To exercise a repurchase right, the holder shall deliver to the Company on or before the 5th Business Day 10th trading day prior to the Repurchase Date, together with this InstrumentSecurity, written notice of the holder's exercise of such right, which notice shall set forth the name of the holder, the number of shares of Common Stock then owned by such holder and its affiliates, the principal amount of this Instrument Security to be repurchased (and, if this Instrument Security is to be repurchased in part, the portion of the principal amount thereof to be repurchasedrepurchased and the name of the person in which the portion thereof to remain outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made thereby, and, in the event that the Repurchase Price shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificates for shares of Common Stock shall be issued. Such written notice shall be irrevocable, except that the right of the holder to convert this Instrument Security (or the portion hereof with respect to which the repurchase right is being exercised) shall continue until the close of business on the Business Day prior Repurchase Date (or if the Company elects to pay the Repurchase DatePrice by delivery of shares of Common Stock, until the close of business on the Trading Day immediately preceding the first delivery of Common Stock in respect thereof).
(c) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the holder the Repurchase Price in cash or shares of Common Stock, as provided above, together with accrued and unpaid interest to the Repurchase Date; provided, however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash, to the manner set forth in holders of this Security, or one or more predecessor Securities, registered as such at the introductory paragraph to this Instrumentclose of business on the relevant regular record date.
(d) If this Instrument Security (or portion thereof) is surrendered for repurchase and is not so paid on or prior to the Repurchase Date, the principal amount of this Security (or such portion hereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the Repurchase Date at the rate per annum borne by this Security, and shall remain convertible into Common Stock until the principal of this Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(e) If this Security is to be repurchased only in part, it shall be surrendered to the Company at the Designated Office (with, if the Company so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company, Company duly executed by by, the holder hereofhereof or his attorney duly authorized in writing), and the Company shall execute and deliver make available for delivery to the holder, holder without service charge, a new Instrument Security or Securities, containing identical terms and conditions identical to those contained herein and conditions, each in a an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of this Instrumentthe Security so surrendered.
(ef) For purposes of this Section 7:3.
(1) the term "beneficial owner" shall be determined in accordance with Rule 13d-3 promulgated by the Securities and Exchange Commission pursuant to the Securities Exchange Act;Act of 1934; and
(2) a "Change in Control" shall be deemed to have occurred at the time, after the original issuance of this InstrumentSecurity, of:
(i) the acquisition by any Person (including, for purposes of this Section 7, any group of two or more persons or entities acting together as contemplated by Section 14(d) of the Exchange Act) person of beneficial ownership, directly or indirectly, through a purchase, merger or other acquisition transaction or series of transactions, of shares of capital stock of the Company or the Parent entitling such Person person to exercise 50% or more of the total voting power of all shares of capital stock of the Company or the Parent entitled to vote generally in the elections of directors (any shares of voting stock of which such Person person is the beneficial owner that are not then outstanding being deemed outstanding for purposes of calculating such percentage) other than any such acquisition by the Company or the Parent or any employee benefit plan of the Company or the ParentCompany; or
(ii) any consolidation or merger of the Company or the Parent with or into, any other Personperson, any merger of another Person person with or into the Company or the ParentCompany, or any conveyance, transfer, sale, lease or other disposition of all or substantially all of the assets of the Company or the Parent to another Person person (other than (a) any such transaction (x) which does not result in any reclassification, conversion, exchange or cancellation of outstanding shares of Common Stock and (y) pursuant to which holders of capital stock of the Company (or if applicable, of the Parent) Common Stock immediately prior to such transaction have the entitlement to exercise, directly or indirectly, 50% or more of the total voting power of all shares of capital stock entitled to vote generally in the election of directors of the continuing or surviving Person person immediately after such transaction and (b) any merger (x) which does not result in any reclassification, conversion, exchange or cancellation of outstanding Common Stock or (y) which is effected solely to change the jurisdiction of incorporation of the Company or the Parent and results in a reclassification, conversion or exchange of outstanding shares of Common Stock into solely shares of common stock);; provided, however, that a Change in Control shall not be deemed to have occurred if the Closing Price for any five Trading Days within the period of 10 consecutive Trading Days (x) ending immediately after the later of the date of the Change in Control or the date of the public announcement of the Change in Control (in the case of a Change in Control under Clause (i) above) or (y) ending immediately prior to the date of the Change in Control (in the case of a Change in Control under Clause (ii) above) shall equal or exceed 105% of the Conversion Price in effect on each such Trading Day.
Appears in 1 contract
Right to Require Repurchase. (a) In the event that a Change in of Control (as hereinafter defined) shall occur, then the holder of this Instrument each Holder shall have the right, at such holderHolder's option, to require the Company to repurchase, and upon the exercise of such right the Company shall repurchase, all of such Holder's Securities, or part any portion of this Instrument (as provided hereinbelow) the principal amount thereof that is equal to $1,000 or any integral multiple thereof, on the date (the "Repurchase Date") that is 20 Business Days (or such longer period as required by applicable law) 45 days after the date on which the Company gives notice of such Change of Control Notice (as defined in Section 14.3) is given to the holder of this Instrument, Holders at a purchase price equal to 100% of the principal amount of the Securities to be repurchased plus interest accrued to the Repurchase Price Date (as hereinafter definedthe "Repurchase Price"). The Company agrees to give the holder ; PROVIDED, HOWEVER, that installments of this Instrument notice, in the manner provided in Section 8(c), of any Change in Control, promptly and in any event within three (3) Business Days after the occurrence thereof.
(b) To exercise a repurchase right, the holder shall deliver to the Company interest on Securities whose Stated Maturity is on or before the 5th Business Day prior to the Repurchase DateDate shall be payable to the Holders of such Securities, together with this Instrumentor one or more Predecessor Securities, written notice registered as such on the relevant Record Date according to their terms and the provisions of Section 3.8. At the option of the holder's exercise Company, the Repurchase Price may be paid in cash or, subject to the fulfillment by the Company of such right, which notice shall the conditions set forth the name Section 14.2, by delivery of the holder, the principal amount shares of this Instrument to be repurchased (and, if this Instrument is to be repurchased in part, the portion of the principal amount thereof to be repurchased) and Common Stock having a statement that an election to exercise the repurchase right is being made thereby. Such written notice shall be irrevocable, except that the right of the holder to convert this Instrument (or the portion hereof with respect to which the repurchase right is being exercised) shall continue until the close of business on the Business Day prior fair market value equal to the Repurchase Date.
Price as described in Section 14.2(a). Whenever in this Indenture (cincluding Sections 2.2, 3.1, 5.1(1) In and 5.8) there is a reference, in any context, to the event a repurchase right principal of any Security as of any time, such reference shall be exercised in accordance with the terms hereof, the Company shall pay or cause deemed to be paid include reference to the holder Repurchase Price payable in respect of such Security to the extent that such Repurchase Price is, was or would be so payable at such time, and express mention of the Repurchase Price in cash on any provision of this Indenture shall not be construed as excluding the Repurchase Date Price in the manner set forth in the introductory paragraph to those provisions of this Instrument.
(d) If this Instrument Indenture when such express mention is to be repurchased only in partnot made; PROVIDED, it shall be surrendered to the Company at the Designated Office (withHOWEVER, if the Company so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company, duly executed by the holder hereof), and the Company shall execute and deliver to the holder, without service charge, a new Instrument containing terms and conditions identical to those contained herein and in a principal amount equal to and in exchange that for the unrepurchased portion of the principal of this Instrument.
(e) For purposes of this Section 7:
(1) the term "beneficial owner" shall be determined in accordance with Rule 13d-3 promulgated by the Securities and Exchange Commission pursuant to the Exchange Act;
(2) a "Change in Control" Article Thirteen, such reference shall be deemed to have occurred at include reference to the time, after Repurchase Price only if the original issuance of this Instrument, of:
(i) the acquisition by any Person (including, for purposes of this Section 7, any group of two or more persons or entities acting together as contemplated by Section 14(d) of the Exchange Act) of beneficial ownership, directly or indirectly, through a purchase, merger or other acquisition transaction or series of transactions, of shares of capital stock of the Company or the Parent entitling such Person to exercise 50% or more of the total voting power of all shares of capital stock of the Company or the Parent entitled to vote generally Repurchase Price is payable in the elections of directors (any shares of voting stock of which such Person is the beneficial owner that are not then outstanding being deemed outstanding for purposes of calculating such percentage) other than any such acquisition by the Company or the Parent or any employee benefit plan of the Company or the Parent; or
(ii) any consolidation or merger of the Company or the Parent with or into, any other Person, any merger of another Person with or into the Company or the Parent, or any conveyance, transfer, sale, lease or other disposition of all or substantially all of the assets of the Company or the Parent to another Person (other than (a) any such transaction pursuant to which holders of capital stock of the Company (or if applicable, of the Parent) immediately prior to such transaction have the entitlement to exercise, directly or indirectly, 50% or more of the total voting power of all shares of capital stock entitled to vote generally in the election of directors of the continuing or surviving Person immediately after such transaction and (b) any merger (x) which does not result in any reclassification, conversion, exchange or cancellation of outstanding Common Stock or (y) which is effected solely to change the jurisdiction of incorporation of the Company or the Parent and results in a reclassification, conversion or exchange of outstanding Common Stock into solely shares of common stock);cash.
Appears in 1 contract
Sources: Indenture (Interim Services Inc)
Right to Require Repurchase. (a) In the event that a Change in Control (as hereinafter defined) shall occur, then the The holder of this Instrument Security shall have the right, at such holder's option, to require the Company to repurchase, and upon the exercise of such right the Company shall repurchase, all this Security, or part any portion of this Instrument (as provided hereinbelow) the principal amount hereof in an amount not less than $1,000,000, on the date (the "Repurchase Date") that is 20 Business is: (i) any time on or after January 15, 2005, or (ii) --------------- in the event that a Change in Control shall occur, then fifteen (15) Trading Days (or such longer period as required by applicable law) after the date on which the Company gives notice of such Change of Control to the holder of this InstrumentSecurity, at a purchase price equal to the Repurchase Price Price. Notwithstanding the foregoing, in the event the Change of Control involves a purchase of all or substantially all of the assets of the Company solely for cash, then upon the occurrence of such Change of Control, this Security shall be automatically redeemed for an amount equal to accrued and unpaid interest plus the greater of (as hereinafter defined)i) 115% of the principal amount outstanding under the Security or (ii) the fair market value of the shares of Common Stock issuable upon conversion of this Security, assuming such conversion occurred immediately prior to such Change of Control. The Company agrees to give the holder of this Instrument Security notice, in the manner provided in Section 8(c9(b), of any Change in Control, promptly and in any event within three (3) Business not more than 2 Trading Days after the occurrence thereof.
(b) To exercise a repurchase right, the holder shall deliver to the Company on or before the 5th Business Day prior to the Repurchase DateCompany, together with this InstrumentSecurity, written notice of the holder's exercise of such right, which notice shall set forth the name of the holder, the principal amount of this Instrument Security to be repurchased (and, if this Instrument Security is to be repurchased in part, the portion of the principal amount thereof to be repurchased) repurchased and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered), a statement that an election to exercise the repurchase right is being made thereby, and a statement as to whether the repurchase is pursuant to a Change of Control or not (the "Repurchase Notice"). The holder shall deliver the Repurchase Notice (i) in the ----------------- case of a repurchase upon a Change of Control, not less than 5 days prior to the Repurchase Date, or (ii) in the case of a repurchase other than upon a Change of Control, not less than thirty (30) nor more than sixty (60) days prior to the Repurchase Date. Such written notice Repurchase Notice shall be irrevocable, except that the right of the holder to convert this Instrument Security (or the portion hereof with respect to which the repurchase right is being exercised) shall continue until the close of business on the Business Trading Day prior to the Repurchase Date.
(c) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the holder the Repurchase Price in cash only on or prior to the Repurchase Date in the manner set forth in the introductory paragraph to this InstrumentDate.
(d) Without prejudice to any other rights that may be available to the holder of this Security, if this Security (or portion thereof) is surrendered for repurchase and the applicable Repurchase Price is not paid on the Repurchase Date, the principal amount of this Security (or such portion hereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the Repurchase Date at the rate of 12.0% per annum, payable in cash, and shall remain convertible into Common Stock until the principal of this Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(e) If this Instrument Security is to be repurchased only in part, it shall be surrendered to the Company at the Designated Office (with, if the Company so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company, Company duly executed by by, the holder hereofhereof or his attorney duly authorized in writing), and the Company shall execute and deliver make available for delivery to the holder, holder without service charge, a new Instrument Security or Securities, containing identical terms and conditions identical to those contained herein and conditions, each in a an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of this Instrumentthe Security so surrendered.
(ef) In the event that there shall be any conversion of this Security (including any deemed conversion) pursuant to Section 2 after the holder of this Security has delivered a Repurchase Notice to the Company, the holder shall promptly reimburse the Company for all fees, costs and expenses paid to third parties incurred by it in connection with any arrangement or facility intended to finance the Repurchase Price of the portion of this Security so converted (and such reimbursement shall be limited to those fees, costs and expenses incurred by the Company after delivery of such Repurchase Notice and attributable to financing such Repurchase Price).
(g) For purposes of this Section 73:
(1) the term "beneficial owner" shall be determined in accordance ---------------- with Rule 13d-3 promulgated by the Securities and Exchange Commission pursuant to the Securities Exchange ActAct of 1934;
(2) a "Change in Control" shall be deemed to have occurred at the ----------------- time, after the original issuance of this InstrumentSecurity, of:
(i) the acquisition by any Person (including, for purposes of this Section 7, any group of two or more persons or entities acting together as contemplated by Section 14(d) of the Exchange Act) of beneficial ownership, directly or indirectly, through a purchase, merger or other acquisition transaction or series of transactions, of shares of capital stock of the Company or the Parent entitling such Person to exercise 50% or more of the total voting power of all shares of capital stock of the Company or the Parent entitled to vote generally in the elections of directors (any shares of voting stock of which such Person is the beneficial owner that are not then outstanding being deemed outstanding for purposes of calculating such percentage) other than any such acquisition by the Company or the Parent or any employee benefit plan of the Company or the ParentCompany; or
(ii) any consolidation or merger of the Company or the Parent with or into, any other Person, any merger of another Person with or into the Company or the ParentCompany, or any conveyance, transfer, sale, lease or other disposition of all or substantially all of the assets of the Company or the Parent to another Person (other than (aA) any such transaction pursuant to which holders of capital stock of the Company (or if applicable, of the Parent) Common Stock immediately prior to such transaction have the entitlement to exercise, directly or indirectly, 50% or more of the total voting power of all shares of capital stock entitled to vote generally in the election of directors of the continuing or surviving Person immediately after such transaction and (bB) any merger (x) which does not result in any reclassification, conversion, exchange or cancellation of outstanding Common Stock or (y) which is effected solely to change the jurisdiction of incorporation of the Company or the Parent and results in a reclassification, conversion or exchange of outstanding Common Stock into solely shares of common stock);; or
(iii) any transaction or event (whether by means of an exchange offer, liquidation, tender offer, consolidation, merger, combination, reclassification, recapitalization or otherwise) in connection with which all or substantially all shares of Common Stock are exchanged for, converted into, acquired for or constitute solely the right to receive, consideration which is not all or substantially all common stock that is (a) listed on, or immediately after the transaction or event will be listed on, a United States national securities exchange, or (b) approved, or immediately after the transaction or event will be approved, for quotation on the Nasdaq National Market or any similar United States system of automated dissemination of quotations of securities prices; and
Appears in 1 contract
Sources: Convertible Note Agreement (Finestar International LTD)
Right to Require Repurchase. (a) In the event that a Change in Control (as hereinafter defined) shall occur, then the holder of this Instrument Security shall have the right, at such holder's option, to require the Company to repurchase, and upon the exercise of such right the Company shall repurchase, all or part of this Instrument (as provided hereinbelow) Security on the date (the "Repurchase DateREPURCHASE DATE") that is 20 Business Days (or such longer period as required by applicable law) after the date on which the Company gives notice of such Change of Control to the holder of this InstrumentSecurity, at a purchase price equal to the Repurchase Price (as hereinafter defined). The Company agrees to give the holder of this Instrument Security notice, in the manner provided in Section 8(cSECTION 8(C), of any Change in Control, promptly and in any event within three (3) Business Trading Days after of the occurrence thereof.
(b) To exercise a repurchase right, the holder shall deliver to the Company on or before the 5th Business Day prior to the Repurchase Date, together with this InstrumentSecurity, written notice of the holder's exercise of such right, which notice shall set forth the name of the holder, the principal amount of this Instrument Security to be repurchased (and, if this Instrument Security is to be repurchased in part, the portion of the principal amount thereof to be repurchased) and a statement that an election to exercise the repurchase right is being made thereby. Such written notice shall be irrevocable, except that the right of the holder to convert this Instrument Security (or the portion hereof with respect to which the repurchase right is being exercised) shall continue until the close of business on the Business Day prior to the Repurchase Date.
(c) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the holder the Repurchase Price in cash on the Repurchase Date in the manner set forth in the introductory paragraph to this InstrumentSecurity.
(d) If this Instrument Security is to be repurchased only in part, it shall be surrendered to the Company at the Designated Office (with, if the Company so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company, Company duly executed by by, the holder hereof), and the Company shall execute and deliver to the holder, without service charge, a new Instrument Security or Securities, containing terms and conditions identical to those contained herein and in a principal amount equal to and in exchange for the unrepurchased portion of the principal of this InstrumentSecurity.
(e) For purposes of this Section SECTION 7:
(1) the term "beneficial owner" shall be determined in accordance with Rule 13d-3 promulgated by the Securities and Exchange Commission pursuant to the Exchange Act;
(2) a "Change in ControlCHANGE IN CONTROL" shall be deemed to have occurred at the time, after the original issuance of this InstrumentSecurity, of:
(i) the acquisition by any Person (including, for purposes of this Section SECTION 7, any group of two or more persons or entities acting together as contemplated by Section 14(d) of the Exchange Act) of beneficial ownership, directly or indirectly, through a purchase, merger or other acquisition transaction or series of transactions, of shares of capital stock of the Company or the Parent entitling such Person to exercise 50% or more of the total voting power of all shares of capital stock of the Company or the Parent entitled to vote generally in the elections of directors (any shares of voting stock of which such Person is the beneficial owner that are not then outstanding being deemed outstanding for purposes of calculating such percentage) other than any such acquisition by the Company or the Parent or any employee benefit plan of the Company or the ParentCompany; or
(ii) any consolidation or merger of the Company or the Parent with or into, any other Person, any merger of another Person with or into the Company or the ParentCompany, or any conveyance, transfer, sale, lease or other disposition of all or substantially all of the assets of the Company or the Parent to another Person (other than (a) any such transaction pursuant to which holders of capital stock of the Company (or if applicable, of the Parent) Common Stock immediately prior to such transaction have the entitlement to exercise, directly or indirectly, 50% or more of the total voting power of all shares of capital stock entitled to vote generally in the election of directors of the continuing or surviving Person immediately after such transaction and (b) any merger (x) which does not result in any reclassification, conversion, exchange or cancellation of outstanding Common Stock or (y) which is effected solely to change the jurisdiction of incorporation of the Company or the Parent and results in a reclassification, conversion or exchange of outstanding Common Stock into solely shares of common stock);
Appears in 1 contract
Sources: Asset Purchase Agreement (Catapult Communications Corp)
Right to Require Repurchase. (a) In the event that a Change in Control (as hereinafter defined) shall occur, then the holder Holder of this Instrument Note shall have the right, at such holderHolder's option, to require the Company to repurchase, and upon the exercise of such right the Company shall repurchase, all or part of repurchase this Instrument (as provided hereinbelow) Note on the date such Change of Control occurs (the "Repurchase Date") that is 20 Business Days (or such longer period as required by applicable law) after the date on which the Company gives notice of such Change of Control to the holder of this Instrument), at a purchase price equal to the Repurchase Price (as hereinafter defined). The Company agrees to give the holder of this Instrument noticeHolder, in the manner provided in Section 8(c7(b), of any Change in Control, promptly and in any event within three ten (310) Business Trading Days after prior to the occurrence thereof.
(b) To exercise a repurchase right, the holder Holder shall deliver to the Company on or before the 5th Business Day second (2nd) day prior to the Repurchase Date, together with this InstrumentNote, written notice of the holderHolder's exercise of such right, which notice shall set forth the name of the holderHolder, the principal Principal amount of this Instrument Note to be repurchased (and, . if this Instrument Note is to be repurchased in part, . the portion of the principal Principal amount thereof to be repurchased) and a statement that an election to exercise the repurchase right is being made thereby. , Such written notice shall be irrevocable, except that the right of the holder Holder to convert this Instrument Note (or the portion hereof with respect to which the repurchase right is being exercised) shall continue until the close of business on the Business Trading Day prior to the Repurchase Date.
(c) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the holder Holder the Repurchase Price in cash on the Repurchase Date in the manner set forth in the introductory paragraph to this InstrumentNote.
(d) If this Instrument Note is to be repurchased only in part, it shall be surrendered to the Company at the Designated Office (with, if the Company so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company, Company duly executed by by, the holder hereofHolder hereof or his attorney duly authorized in writing), and the Company shall execute and deliver make available for delivery to the holder, Holder without service charge, a new Instrument Note or Notes, containing identical terms and conditions identical to those contained herein and conditions, each in a principal an authorized denomination in aggregate Principal amount equal to and in exchange for the unrepurchased portion of the principal Principal of this Instrumentthe Note so surrendered.
(e) For purposes of this Section 73:
(1) the The term "beneficial owner" shall be determined in accordance with Rule 13d-3 promulgated by the Securities and Exchange Commission pursuant to the Exchange Act;.
(2) a A "Change in Control" shall be deemed to have occurred at the time, after the original issuance of this InstrumentNote, of:
(i) the acquisition by any Person or group (including, for purposes of this Section 7, any group of two or more persons or entities acting together as contemplated by Section 14(d) within the meaning of the Exchange ActAct and the rules of the Commission thereunder as in effect on the date hereof) of beneficial ownership, directly or indirectly, through a purchase, merger or other acquisition transaction or series of transactions, of shares of capital stock of the Company or the Parent entitling such Person to exercise 50% or more of the total voting power of all shares of capital stock of the Company or the Parent entitled to vote generally in the elections of directors (any shares of voting stock of which such Person is the beneficial owner that are not then outstanding being deemed outstanding for purposes of calculating such percentage) other than any such acquisition by the Company or the Parent or any employee benefit plan of the Company or the ParentCompany; or
(ii) any consolidation or merger of the Company or the Parent with or into, any other Person, any merger of another Person with or into the Company or the ParentCompany, or any conveyance, transfer, sale, lease or other disposition of all or substantially all of the assets of the Company or the Parent to another Person (other than (a) any such transaction pursuant to which holders of capital stock of the Company (or if applicable, of the Parent) Common Stock immediately prior to such transaction have the entitlement to exercise, directly or indirectly, 50% or more of the total voting power of all shares of capital stock entitled to vote generally in the election of directors of the continuing or surviving Person immediately after such transaction and (b) any merger (x) which does not result in any reclassification, conversion, exchange or cancellation of outstanding Common Stock or (y) which is effected solely to change the jurisdiction of incorporation of the Company or the Parent and results in a reclassification, conversion or exchange of outstanding Common Stock into solely shares of common stock);; or
(iii) the occupation of a majority of the seats (other than vacant seats) on the board of directors of the Company by Persons who were neither (i) nominated by the board of directors of the Company nor (ii) appointed by directors so nominated.
(3) The "current market price" of a share of Common Stock shall be the Closing Price of the Common Stock on the Trading Day immediately preceding the Repurchase Date.
Appears in 1 contract
Sources: Convertible Note Agreement (Zap)